Defenses Flashcards
(133 cards)
1
Q
- Intoxication
1.1 Absence of a valid defence
A
For a defendant to be criminally liable, they must have the actus reus and mens rea of the relevant offence and the absence of a valid defence - a justification or excuse for D’s behaviour. If a valid and complete defence exists, D will not be criminally liable. Intoxication is available to almost any crime. You will come across intoxication in two different forms:
* A way to negate the mens rea of an offence; or
* An influencing factor on another legal principle/defence.
First, let us consider the law when addressing whether intoxication can be used to negate mens rea.
2
Q
1.2 How intoxication works to negate the mens rea
Full Aquittal
A
The principle of intoxication allows the defendant to use evidence of their intoxication to show that
they did not form the necessary mens rea for the offence. Strictly speaking, it is not a defence, but many practitioners and academics refer to it in that way. Since the leading case on the burden of proof, Woolmington [1935] AC 462, it has been clear that the prosecution need to prove, beyond reasonable doubt, that the defendant has committed the actus reus with the necessary mens rea. If, due to intoxication, the defendant did not form the necessary mens rea, then under certain circumstances, the defendant will be entitled to a full acquittal.
3
Q
R v Bennett [1995] Crim LR 877 (CA):
A
It was held that the judge is obliged to direct the jury on intoxication whenever there is evidence such that a reasonable jury might conclude that there is a reasonable possibility that the accused did not form the mens rea.
4
Q
Intoxication will not assist the defendant.
A
If the accused’s drunkenness was not such as to negate mens rea, it is no answer for the accused to say that they would not have behaved as they did but for being drunk. If the prosecution can establish that the defendant formed the necessary mens rea, despite their intoxication, then intoxication will not assist the defendant.
5
Q
R v Kingston [1995] 2 AC 355
A
A good example of this legal principle is the case of R v Kingston [1995] 2 AC 355, see below. Please note the facts of this case contains a description of an indecent assault on a child which is sadly common in this type of work. This reflects the nature of this subject, our society and the realities of practice.
6
Q
Key case: R v Pordage [1975] Crim LR 575 (CA)
A
Confirmed that the question at issue is not whether the defendant was incapable of forming the mens rea, but whether, even if still capable, they did form it.
7
Q
1.3 When can intoxication operate to negate the mens rea?
A
- In any crime where the intoxication is caused by drink or drugs taken involuntarily, ie ‘spiking’ or ‘lacing’ someone’s drink or food with a drug or alcohol
- In any crime where the intoxication is caused by drugs taken voluntarily, but in bona fide pursuance of medical treatment
- In any crime where the intoxication is caused by non-dangerous drugs taken voluntarily (dangerous drugs are those which are illegal or alcohol)
- In crimes where a specific intent is required (generally where the offence cannot be committed recklessly)
8
Q
Evidential burden on the defendant
A
It would appear that there is an evidential burden on the defendant to raise the issue of intoxication, and then the prosecution needs to prove beyond reasonable doubt that the
defendant formed the necessary mens rea
9
Q
Whether intoxication will negate the mens rea
A
When addressing whether intoxication will negate the mens rea of the alleged offence you should
ask the following three questions:
(a) Is the defendant voluntarily intoxicated or involuntarily intoxicated?
(b) Is the intoxicant a dangerous alcohol/drug or a non-dangerous drug?
(c) Is it a crime of basic intent or specific intent?
10
Q
1.4 Involuntary intoxication
A
Where the intoxication is involuntary, the defence of intoxication may be available for any offence (both specific and basic intent crimes). This could arise where D was forced to consume alcohol or other intoxicating drugs, or was deceived into doing so, for example by drugs being placed in their food or their drink being laced with alcohol. See R v Kingston. However, where the defendant is aware that they are drinking alcohol, but is mistaken as to the strength of the alcohol, this will not count as involuntary intoxication (R v Allen [1988] Crim LR 698).
11
Q
Key case: R v Kingston [1995] 2 AC 355
A
Kingston (K) admitted to paedophiliac tendencies, which he said he managed to keep under control. As a result of a business dispute, P arranged to blackmail K by photographing and audiotaping him in a compromising situation. P lured a boy of 15 to his flat where he gave the boy sedatives and some cannabis. The boy fell asleep on the bed and remembered nothing until he woke up next morning. P invited K to his flat and gave him some coffee. He then showed K the boy
asleep on a bed and invited him to indecently assault the boy
12
Q
Key case: R v Kingston [1995] 2 AC 355
A
This the appellant did and he was
photographed and taped doing so. K’s defence was that he was involuntarily intoxicated. He
claimed that P had drugged the coffee and this had the effect of making him lose his inhibitions
and commit the offence. The House of Lords held that K was liable, saying that if he had still formed the mens rea in his intoxicated state, it was no defence to plead that he would not have committed the offence when sober.
13
Q
1.5 Voluntary intoxication
Key case: DPP v Majewski [1977] AC 443
A
This is the key case in this area.
The defendant was involved in a pub crawl in which he attacked the landlord and was charged with an assault occasioning actual bodily harm contrary to s 47 OAPA. The trial judge refused to direct the jury that the defendant’s drunkenness may constitute a defence. The defendant was convicted and appealed to the Court of Appeal against his conviction.
14
Q
Court of Appeal
A
The Court of Appeal certified the following question for the House of Lords: Whether a defendant may properly be convicted of an assault notwithstanding that, by reason of his self-induced incapacity, he did not intend to do the act alleged to constitute the assault.
15
Q
Specific Intent v Basic Intent
A
The House of Lords held that voluntary intoxication could be a defence to a charge of specific
intent, where the defendant’s intoxication negated the mens rea required for the offence charged.
However, voluntary intoxication would not be a defence to a charge of basic intent.
16
Q
Lord Elwyn-Jones
A
If a man of his own volition takes a substance which causes him to cast off restraints of reason and conscience, no wrong is done to him by holding him answerable criminally for any injury he may do while in that condition. His course of conduct by reducing himself by drugs and drink to that condition on my view supplies the evidence of mens rea, of guilty mind certainly sufficient for crimes of basic intent
17
Q
Recklessness
A
It is a reckless course of conduct and recklessness is enough to constitute the necessary mens rea in assault cases. The drunkenness is in itself an
intrinsic, an integral part of the crime, the other part being the evidence of the unlawful use of force against the victim. Together they add up to criminal recklessness. Self-induced
intoxication, however gross and even if it has produced a condition akin to automatism cannot excuse crimes of basic intent […]
18
Q
DPP v Majewski
A
It is not clear from DPP v Majewski how the jury should be directed when a defendant who is voluntarily intoxicated has committed a basic intent crime. The extract from Lord Elwyn-Jones suggests that the prosecution is excused having to prove the mens rea, while Lord Salmon in the same case referred to the defendant being unable to use intoxication as a defence.
19
Q
Lord Elwyn-Jones’s method
A
As Lord Elwyn-Jones’s method has been criticised, the method used by the courts today is for the jury to consider whether the defendant would have seen the risk had they not been intoxicated (R v Coley, McGhee and Harris [2013] EWCA Crim 223).
20
Q
Judicial Studies Board Crown Court Book in R v G:
A
If the defendant’s ability to appreciate the risk was or may have been impaired through drink the jury should be asked to consider his awareness as it would have been had the defendant been sober. If they are sure the defendant would have been aware of the risk if he had been
sober, the first stage is satisfied.
21
Q
1.5.1 Dangerous and non-dangerous drugs
A
The court in R v Hardie [1985] 1 WLR 64 held that drugs are divided into two categories.
(a) Dangerous drugs: Where it is common knowledge that a drug is liable to cause the taker to become aggressive, or to do dangerous or unpredictable things, that drug is to be classed with alcohol. Illegal drugs will fall into this category.
(b) Non-dangerous drugs: Where there is no such common knowledge, eg a merely soporific or sedative drug. Different rules apply for non-dangerous drugs, the defence of intoxication might be available if D did not form the necessary mens rea.
22
Q
Key case: R v Hardie [1985] 1 WLR 64
A
Facts: In this case D took Valium belonging to his girlfriend. Later he started a fire and said, when
charged with criminal damage, that he had no mens rea because of the Valium. He was convicted
as the judge directed the jury that drugs were to be treated as drink and the Majewski rules applied.
Held: The Court of Appeal allowed his appeal on the basis that the Valium was taken for calming his nerves, and there was no evidence that the appellant knew it would make him aggressive, incapable of appreciating risks to others or susceptible to other side effects, so as to make his taking it reckless.
23
Q
1.5.2 The distinction between crimes of basic and specific intent
Majewski provided a leading method for categorising crimes for some time.
A
Basic intent offence
A crime was categorised as one of basic intent where the defendant could be convicted on the
basis of recklessness as to the consequences, or where no foresight as to the consequences is
required. An example of a basic intent offence is battery as D must intend or be reckless as to applying
unlawful force on another.
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Q
Specific intent offence
A
Crimes of specific intent were those where intention was the only form of mens rea available, ie where recklessness was insufficient mens rea for the offence to be made out. An example of a specific intent offence is murder as D must intend to kill or cause grievous bodily
harm, recklessness is not enough.
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Specific Intent Crimes
1. Murder
2. Wounding or grievous bodily harm with intent, s 18 Offences Against the Person Act (OAPA) 1861
3. Theft
4. Robbery
5. All burglary under s 9(1)(a) TA 1968
6. Burglary under s 9(1)(b) where D has fulfilled the last element by:
- Stealing
- Attempting to steal or attempting to
cause GBH
7. Attempts
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Basic intent crimes
* Unlawful act manslaughter
* Gross negligence manslaughter
* Malicious wounding/inflicting GBH, s 20
* Assault occasioning ABH, s 47
* Battery
* Assault
* Basic criminal damage and aggravated criminal damage, s 1(1) and s 1(2) CDA 1971
* Burglary under s 9(1)(b) where D has fulfilled the last element by causing GBH
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Specific and basic intent offences
However, there is no agreed definition of specific and basic intent offences. In the controversial
Court of Appeal case of R v Heard [2007] EWCA Crim 125, Lord Justice Hughes gave the following rule for determining specific intent crimes:
[…] proof of a state of mind addressing something beyond the prohibited act itself, namely its
consequences.
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Applying Heard definition
If the Heard definition was applied, it would mean that aggravated criminal damage contrary to s 1(2) CDA 1971 which is generally thought of as a basic intent offence would be treated as a specific intent offence, as the mens rea includes an intention or recklessness as to life being
endangered by the defendant’s act of criminal damage.
29
Application of R v Heard on aggravated criminal damage
Section 1(2) Criminal Damage Act 1971
Actus reus
* Destroy or damage
* Property
Mens rea
* Intention or recklessness as to the destruction or damage of property
* Intention or recklessness as to the endangerment of life by the damage or destruction
30
Hughes LJ in Coley, McGhee and Harris:
However, more recently Hughes LJ in Coley, McGhee and Harris, while noting that there was now room for doubt as to whether aggravated criminal damage was a crime of basic intent due to the ‘passing obiter reference’ in Heard, said there was force in the argument that voluntary intoxication should not be a defence to crimes of recklessness. He said it was not necessary to resolve the matter in the case before him.
31
Dennis J Baker in Glanville Williams’s Criminal Law described the court in Heard
As having ‘embarked on an ill-considered legislative venture’ and the court’s reasoning as being
‘contradictory and fallacious’. The case is also criticised by David Ormerod in Smith, Hogan and
Ormerod’s Criminal Law, where he concludes that any offence which may be committed recklessly ought to be held to be an offence of basic intent. It is therefore proposed that you concentrate on the Majewski method for distinguishing between
crimes of basic and specific intent.
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1.6 Intoxication and other defences
Up to this point, we have considered intoxication as a way to negate the mens rea of an offence. The second way that intoxication can impact your legal analysis is as an influencing factor on another legal principle or defence. Generally, intoxication will not enable a defendant to rely on a defence, whether the crime they
have committed is one of specific or basic intent.
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1.7 Summary
Intoxication working to negate the mens rea
The court will ask whether the defendant did form the mens rea even though intoxicated:
* If yes, a drunken intent is still intent, D will be criminally liable, see Kingston. Another example
would be if D takes drugs or alcohol in order to commit a specific intent crime (sometimes referred to as ‘Dutch courage’).
* If no, D lacks the mens rea and will be acquitted eg D was so intoxicated they did not know what they were doing
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The court will ask whether the defendant did form the mens rea even though intoxicated, in cases
of:
Involuntary intoxication (such as being drugged without consent);
* Voluntary intoxication by non-dangerous drugs (eg Hardie, the D who took Valium to calm his
nerves); or
* Voluntary intoxication and D has committed a specific intent crime (eg murder).
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Intoxication working to negate the mens rea
Where D is voluntary intoxicated by dangerous drugs/alcohol and commits a less serious crime of
basic intent (where recklessness is a form of mens rea available), the defendant will be deemed
reckless if they would have formed the MR if sober (Coley, McGhee and Harris):
* If yes, D will be criminally liable eg if D got drunk and started throwing pebbles at a window
which smashed. D will be criminally liable if they would have realised the risk of damaging the
window had they have been sober.
* If no, D will not be criminally liable eg if D smashed the window by tripping over a broken step
that they would have tripped on if sober.
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Intoxication and other defences
* Self-defence: D cannot rely on a drunken mistake as to the need to use self-defence.
* Loss of control and diminished responsibility can still be pleaded if D was intoxicated but it
does impact various aspects of the legal analysis.
* Consent: If the jury are satisfied that V consented to the accidental infliction of injury or D
(even wrongly) believed that V consented (due to their intoxication), D may have a defence
(Richardson & Irwin).
* Statutory defences, where these allow for an honest belief, D will be able to use the defence
even if their belief is due to voluntary intoxication, see Jaggard v Dickinson on the lawful
excuse defence for criminal damage.
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2. Consent
For offences against the person, the consent of the victim may also preclude a crime. It is not clear whether consent operates as a defence to the crime or whether the absence of consent is an element of the offence. The Law Lords in the important House of Lords case of R v Brown [1994] AC 212 were divided on this. Lords Jauncey and Templeman said consent was a defence, while
Lord Mustill said lack of consent was part of the offence.
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Lord Lowry
Lord Lowry spoke of it as a defence, but then cited the Law Commission’s Draft Code, which treats the absence of consent as an element of the offence of common assault. For the purposes of this Workbook it is being treated as a defence. There are two elements to consent:
(a) Either the victim consented or the defendant believed the victim consented.
(b) The offence is one which a victim can consent to.
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2.1 Either the victim consented or the defendant believed the victim
consented
It is for the prosecution to prove both that the victim did not consent and that the defendant did not believe in the victim’s consent. So if the defendant wrongly believed the victim consented, the defence could be available (R v Richardson and Irwin). Equally if the victim consented, even if the defendant did not know this, the defence could be available. Whether the defence of consent is
available will depend on the level of harm inflicted on the victim and the circumstance in which the
harm was inflicted.
40
Key case: R v Richardson and Irwin [1999] 1 Cr App R 392
Facts: The defendants were university students. After drinking at a student union bar they decamped to a flat belonging to one of their friends, the victim. Horseplay ensued during which the defendants lifted and dropped the victim over a balcony where he fell a distance of 10–12 feet
(around 3/3.5 me), sustaining injuries. The defendants were charged under s 20 OAPA. The defendants were convicted and appealed against their conviction.
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The Court of Appeal
Held: The Court of Appeal upheld their appeal and quashed their convictions on the basis that
there had been misdirection by the trial judge. Their Lordships stated:
(a) That if the jury were satisfied that V had in fact consented to the accidental infliction of injury, this would be a defence; and
(b) That the jury should have been allowed to consider whether the defendant believed that V
consented, even if the defendants wrongly believed that V consented due to their intoxication!
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2.2 The offence is one which a victim can consent to
The general rule is that consent is only available as a defence to assault and battery.
Key case: AG’s Reference(No 6 of 1980) [1981] QB 715 Two boys decided to settle an argument by a fight and one sustained a bleeding nose and bruises. It was held that the other was guilty under s 47 OAPA of assault occasioning actual bodily harm (ABH). […] it is not in the public interest that people should try to cause or should cause each other
actual bodily harm for no good reason. Minor struggles are another matter. So, in our judgment, it is immaterial whether the act occurs in public or private […] this means that most fights will be unlawful regardless of consent.
(Per Lord Lane CJ)
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Key case: R v Brown [1994] AC 212
The general rule that consent is only available as a defence to assault and battery was confirmed by the House of Lords in this case.
Facts: A group of sadomasochists, caused injuries to each other for sexual pleasure. No medical
treatment was required. The participants were charged with offences under s 47 and s 20 OAPA.
The defence of consent failed.
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Judgement
Held: The court held that consent could not be a defence to anything greater than a battery, unless it fell into one of the accepted ‘good reasons’: …] the line properly falls to be drawn between assault at common law and the offence of
assault occasioning ABH created by sec 47 of the 1861 Act with the result that consent of the victim is no answer to anyone charged with the latter offence or sec 20 unless the
circumstances fall within one of the well-known exceptions such as organised sporting contests and games, parental chastisement or reasonable surgery.
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Key case: R v Meachen [2006] EWCA Crim 2414
This subsequent Court of Appeal case has extended the use of consent.
Consent is available as a defence, even where actual bodily harm or worse is caused provided the
defendant:
* Intended only to commit a battery with the consent of the victim; and
* Did not see the risk of inflicting actual bodily harm.
If however, the defendant intended to cause actual bodily harm, then consent is not available as a
defence, even if the victim consented (unless the conduct falls into one of the exceptions which follow). The situation regarding being reckless as to causing actual bodily harm with the victim’s consent is unclear and is still the subject of academic debate.
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2.3 The exceptions
The general rule is that consent is only available as a defence to assault and battery. However,
the victim can consent to offences against the person of ABH and above if the situation falls under
one of the public interest exceptions such as:
* Medical treatment;
* Sport;
* Horseplay;
* Tattooing, body piercing and personal adornment; and
* Sexual gratification/accidental infliction of harm.
* Lawful correction of a child
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2.3.1 Medical treatment
Consent can be given for surgery and other medical treatment that causes harm. Consent can be given to a high risk of death.
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2.3.2 Sport
There is a public interest in encouraging people to play sport, and therefore any incidental injury
caused while playing within the rules of the game will not be an offence. Participants have consented to such incidental injury. The following cases have explored this issue. There is a public interest in encouraging people to play sport, and therefore any incidental injury caused while
playing within the rules of the game will not be an offence. Participants have consented to such incidental injury. The following cases have explored this issue.
49
Key case: R v Barnes [2005] WLR 910
Held: The Court of Appeal said that in organised sport, criminal prosecution should be reserved for those situations where the conduct was sufficiently grave properly to be categorised as criminal. If what occurred went beyond what a player could reasonably be regarded as having accepted by taking part in the sport, this would indicate that the conduct was not covered by the
defence of consent. Whether conduct reached this level depended on all the circumstances, which included the type of sport, the level at which it was played, the nature of the act, the degree of force used, the extent of the risk of injury, and the state of mind of the defendant
50
Key case: R v Barnes [2005] WLR 910 Judgement
In highly competitive sports, conduct outside the rules might be expected to occur in the heat of the
moment; the fact that such conduct was penalised and even resulted in a warning or a sending off, did not necessarily mean that the threshold level required for it to be regarded as criminal had been reached. Here, V had sustained a serious leg injury as a result of a late tackle by D in a
football match. The jury needed to consider whether the contact had been so obviously late and/or violent that it was not to be regarded as an instinctive reaction, error or misjudgement in the heat of the game.
51
Key case: R v Billinghurst [1978] Crim LR 553
Facts: B punched G and fractured his jaw in two places during a rugby match in an off-the-ball
incident. He was charged under s 20 OAPA.
Held: The judge directed that the players are deemed to consent to force of ‘a kind which could
reasonably be expected to happen during a game’. The victim said he had been punched on previous occasions and had punched others. Mervyn Davies, a former Welsh International said that in the modern game punching is the rule not the exception! However, the judge considered ‘on the ball’ and ‘off the ball’ play and as B’s conduct was found to be ‘off the ball’ it was outside the scope of the implied consent. B was therefore convicted.
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Consenting to certain amount of violence
In some Canadian cases, it has been held that spectators at ice hockey matches consent to a certain amount of violence!
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2.3.3 Horseplay
This exception has received much criticism. Key case: R v Richardson and Irwin [1999] 1 Cr App R 392
The defendants seized their friend whom they claimed they believed was consenting and held him
over a balcony. They dropped him and he broke several bones. Their conviction was quashed as the trial judge had not directed the jury to consider consent.
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Key case: R v Jones (1986) 83 Cr App R 375
Some boys at a youth club tossed two other boys into the air, resulting in one suffering a ruptured
spleen and the other a broken arm. The Court of Appeal held that they ought to have been allowed to raise the issue of consent to injuries sustained through ‘rough and undisciplined’ horseplay, for the jury to then consider.
55
Key case: R v Aitken [1992] 1 WLR 1006
Drunken RAF officers were setting fire to one another’s fire-resistant suits, treating it as a joke. Later they set fire to the victim’s suit and he was severely burned. The Court Martial Appeal Court quashed the conviction, relying on Jones.
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2.3.4 Tattooing, body piercing and personal adornment
Key case: R v Wilson [1997] QB 47 (CA)
Facts: The defendant used a hot knife to brand his initials onto the buttocks of his wife, at her request. He argued consent to a charge under s 47 OAPA and was successful.
Held: The Court of Appeal held that there was no logical difference between this type of branding, tattooing, body piercing, and similar personal adornments, which is a lawful activity.
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Key case: R v BM [2018] EWCA Crim 560
The Court of Appeal refused to include body modification, in particular the removal of an ear, the
removal of a nipple and the division of a tongue into a fork like a reptile, in the category of tattooing and personal adornment.
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2.3.5 Sexual gratification
It used to be the case that a defendant may have a defence in consent to accidental injuries
sustained during consensual sexual activity, however in light of s 71 Domestic Abuse Act 2021, a
person cannot consent to the infliction of harm that results in ABH or more, for the purposes of
obtaining sexual gratification.
The only exception is that a person may consent to the risk of acquiring a sexually transmitted infection.
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Key case: R v Dica [2004] QB 1257
The Court of Appeal held that if the complainant consents to the risk of contracting HIV through having sexual intercourse, the defendant does have a defence to a charge under s 20 OAPA. After examining the cases on sexual gratification,
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Judge LJ
It does not follow […] that consensual acts of sexual intercourse are unlawful merely because
there may be a known risk to the health of one or other participant. These participants are not
intent on spreading or becoming infected with disease through sexual intercourse. They are not
indulging in serious violence for the purposes of sexual gratification. They are simply prepared,
knowingly, to run the risk – not the certainty – of infection, as well as all the other risks
inherent in and possible consequences of sexual intercourse, such as, and despite the most
careful precautions, an unintended pregnancy. Modern society has not thought to criminalise
those who have willingly accepted the risks, and we know of no cases where one or other of the
consenting adults has been prosecuted, let alone convicted, for the consequences of doing so.
However, it is not possible to consent to deliberate HIV infection because HIV is considered
grievous bodily harm as it disables the victim and requires long-term healthcare treatment.
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2.3.6 Lawful correction of a child
Key case: R v Hopley (1860) 2 F & F 202
A parent has a defence of reasonable chastisement in applying force to a child. This is now open to challenge under Article 3, European Convention on Human Rights, which states that no one shall be subjected to torture or inhuman or degrading treatment.
62
Key case: R v H [2002] 1 Cr App R 7
In considering whether or not a parent could use this defence, the jury must look at the nature
and context of the parent’s behaviour, its duration, the physical and mental consequences for the
child, and the reasons why the punishment was inflicted.
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Key case: R v H [2002] 1 Cr App R 7
This area is also governed by the Children Act 2004, s 58 which outlines that the reasonable punishment defence cannot be relied on if it results in ABH or above for example.
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2.4 Limitation on extending the categories of exceptions
R v BM [2018] EWCA Crim 560: Lord Burnett of Maldon said these categories should not be
extended by the courts.
New exceptions should not be recognised on a case by case basis, save perhaps where there is
a close analogy with an existing exception to the general rule established in the Brown case.
The recognition of an entirely new exception would involve a value judgement which is policy
laden, and on which there may be powerful conflicting views in society. The criminal trial
process is inapt to enable a wide-ranging inquiry into the underlying policy issues, which are
much better explored in the political environment.
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2.5 Summary
This section considered one of the general defences to a crime, consent:
* The victim’s consent can sometimes prevent a defendant being liable for a crime, eg belief in
owner’s consent (s 5(2)(a) CDA 1971 and s 2(1)(b) TA 1968).
* For offences against the person the victim’s consent may also prevent the defendant from
being liable for a crime:
- The general rule is that consent is only available as a defence to assault and battery (AG’s
Reference (No 6 of 1980)).
- The general rule was extended by R v Meachen: consent is available even where ABH or
worse is caused provided D only intended to commit a battery with the consent of the
victim and did not see the risk of inflicting ABH or above.
- If ABH or above has been caused to the victim and the defendant intended to cause such
harm (or possibly saw a risk of causing such harm), consent is not available unless D’s
behaviour falls into one of the exceptions to the general rule: medical treatment, sport,
horseplay, tattooing, body piercing or personal adornment or accidental infliction of harm.
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3. Self-defence
3.1 What is self-defence?
The term ‘self-defence’ can be taken to cover a number of defences, where a person acts to:
* Protect themselves;
* Protect someone else;
* Protect property;
* Prevent a crime; or
* Assist in the arrest of an offender
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Effect of self-defence
The defence of self-defence (which includes defending another and protecting property) is a longestablished common law defence, which, if successfully pleaded, results in an acquittal.
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Statutory Defense
This is supplemented by a statutory defence contained in s 3 Criminal Law Act 1967 (CLA) (which works in almost exactly the same way as common law self-defence).
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Controversial
In recent times, these defences have proved controversial, with many politicians and others calling
either for greater clarity of the existing rights of ordinary people to defend themselves or for
additional protection for such people, especially homeowners who are faced by potentially violent
burglars in their own homes. Celebrated and controversial cases such as those involving Tony
Martin and Munir Hussain led to calls for clarification of or changes to the law.
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3.2 A single statutory defence or a mix of statute and common law?
S 76 Criminal Justice and Immigration Act 2008 (CJIA)
Section 76 CJIA does not purport to set out in comprehensive form the whole of the law relating to
these defences. It does not codify all the provisions of either the common law defence or the statutory defence under the CLA (which remains in force). Section 76(1)(b) states that it applies when ‘the question arises whether the degree of force used by D against a person (“V”) was reasonable in the circumstances’. This is the second part of the common law test - the response.
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R (on the application of Denby Collins) v the Secretary of State for Justice [2016] EWHC 3
In R (on the application of Denby Collins) v the Secretary of State for Justice [2016] EWHC 3, Sir Brian Leveson noted that s 76 governs the second limb of the defence. However, earlier cases, such as R v Dawes, Hatter & Bower [2013] EWCA Crim 322 had adopted the section as applying to both parts of the defence, and this approach is followed in Smith, Hogan and Ormerod.
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Section 76(2) CJIA
Identifies the defences to which the section applies:
(a) the common law defence of self-defence; and
(aa) the common law defence of defence of property; and
(b) the defence provided by section 3(1) of the Criminal Law Act 1967 […] (use of force in prevention of crime or making arrest)
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The common law defence envisaged two possible reasons for acting:
* In the protection of life and limb of yourself or another: see eg R vGladstone Williams(1984) 78
Cr App R 276 (CA).
* In the protection of property: R v Hussey(1925) 18 Cr App R 160 (CA).
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R v Bullerton (1992) NLJ 1725
What is clear is that self-defence can only be used to protect yourself or another, or property from imminent attack: ie from a threat of physical force, not a threat to one’s peace of mind. R v Bullerton (1992) NLJ 1725:
75
By s 3 CLA 1967
A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
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Common law plea of self-defence overlaps with the plea under the s 3 CLA.
In many instances, the common law plea of self-defence overlaps with the plea under the s 3 CLA. The same legal rules apply to both defences so the courts and commentators usually refer to selfdefence without specifying whether they are referring to the common law defence or that
contained in the CLA.
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s 76 CJIA was intended to clarify both the common law and the statutory
defences
It initially made no discernible changes to the previous law but simply re-enacted the old common law principles in statutory form. However, the most recent amendments do seek to make a change to the law that applies where the defendant seeking to make use of any of these defences is a ‘householder’
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Section 76(9) CJIA
States: ‘This section, except so far as making different provision for
householder cases, is intended to clarify the operation of the existing defences mentioned in subsection (2).’ Note that all references to a ‘defence’ or ‘defences’ below can be taken to refer to all or any of the defences listed here.
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3.3 The test for the defences
A defendant is entitled to rely on any of these defences if:
* The defendant honestly believed that the use of force was necessary; and
* The level of force the defendant used in response was objectively reasonable in the
circumstances as the defendant believed them to be.
These two requirements have been referred to as the trigger and the response.
Note that it is for the prosecution to disprove that the defendant acted in self-defence. It is an all
or nothing general defence, so D will either be acquitted by self-defence or the defence will fail.
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Key case: R v Clegg [1995] 1 AC 482 (HL)
Held: Self-defence is a complete defence against all crimes. However, if it fails in any way, the defence will fail in its entirety, eg if a defendant uses slightly excessive force, there is no partial defence of self-defence. However, where the charge that the defendant is facing is murder, and a
defence of self-defence fails, it is possible that a jury will convict the defendant of the lesser offence of voluntary manslaughter on the basis of a loss of control: see R v Dawes, Hatter & Bower [2013] EWCA Crim 322.
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3.4 The trigger: D honestly believed that the use of force was necessary
A defendant is to be judged on the facts as they subjectively believed them to be, whether the belief is reasonable or not. For instance, if a defendant mistakenly believed that they were being attacked with a deadly weapon and used such force as was reasonable to repel an attack with a deadly weapon, then D
has a defence; it is immaterial that they were mistaken and they were in fact being attacked with something less deadly. The common law authority for this is R v Gladstone Williams.
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Key case: R v Gladstone Williams (1984) 78 Cr App R 276 (CA)
Facts: In this case, V saw a woman being robbed and attempted to lawfully apprehend the robber. Williams arrived on the scene and mistakenly thought that the robber was being unlawfully attacked by V. Williams attacked V and was later charged under s 47 Offences Against the Person Act 1861. Williams successfully argued self-defence. In fact, force was not necessary
as the robber was not being unlawfully attacked. Williams was mistaken.
Held: The court held that his actions must be judged according to the facts as he honestly believed them to be
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Reasonableness or unreasonableness of the defendant’
The reasonableness or unreasonableness of the defendant’s belief is material to the question of
whether the belief was held by the defendant at all. If the belief was in fact held, its unreasonableness, so far as guilt or innocence is concerned, is neither here nor there. It is irrelevant.
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Case of self defence
In a case of self defence, where self defence or the prevention of crime is concerned, if the jury come to the conclusion that the defendant believed, or may have believed, that he was being attacked or that a crime was being committed, and that force was necessary to protect himself or to prevent the crime, then the prosecution will not have proved their case
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3.4.1 Mistake induced by voluntary intoxication
Key case: R v O’Connor [1991] Crim LR 135 (CA): If the mistaken belief is due to the voluntary intoxication of the defendant, then the defendant will not be able to rely on their mistake. This is the case whether the crime committed is a specific or
basic intent crime. This approach is confirmed in s 76(5) CJIA 2008.
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Key case: R v Hatton [2005] EWCA Crim 2951
Facts: H had drunk over 20 pints of beer and killed the victim with a sledgehammer. He had been
convicted of murder. The victim had been pretending to be a member of the SAS and a stick, owned by H and which H had fashioned to look like a samurai sword, was found by the victim’s body. H said he had only a vague recollection of what had happened, but put forward a defence
on the basis that he believed he was being attacked by an SAS officer with a sword.
Held: The Court of Appeal applied R v O’Connor and the earlier case of R v O’Grady and held that the mistake that he was being attacked by a sword had been induced by the defendant’s intoxication so could not be relied upon.
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3.4.2 There is no duty to retreat
Despite the fact that the force must have been reasonable, there is no duty to retreat in English law. Although the fact that the defendant had an opportunity to retreat may be regarded as a relevant factor
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Key case: R v Bird [1985] 1 WLR 816 (CA)
Lord Diplock:
There is however, no rule of law that a person attacked is bound to run away if he can, but it has been said that […] “what is necessary is that he should demonstrate by his actions that he does not want to fight. He must demonstrate that he is prepared to temporise and disengage
and perhaps to make some physical withdrawal.” It is submitted that it goes too far to say that action of this kind is necessary.
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Key case: R v Bird [1985] 1 WLR 816 (CA)
Lord Diplock:
A demonstration by the accused that at the time he did not want to fight is, no doubt, the best evidence that he was acting reasonably and in good faith in self defence; but it is no more than that. A person may in some circumstances so act without
temporising, disengaging or withdrawing; and he should have a good defence.
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3.4.3 Anticipatory self-defence
A defendant may make the first blow and still rely on the defence. However, there is no doubt that
the principles set out here are still applicable.
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Key case: AG’s Reference(No 2 of 1983) [1984] QB 456 (CA)
Lord Lane CJ stated that the accused would be entitled to the defence of self-defence if: […] his object was to protect himself or his family or his property against imminent apprehended attack and to do so by means which he believed were no more than reasonably necessary to meet the force used by the attackers.
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Key case: Beckford v R [1988] AC 130 (PC)
Per Lord Griffiths:
A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.
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Key case: Devlin v Armstrong [1971] NI 13 (NI CA)
Per MacDermott LJ: The plea of self-defence may afford a defence where the party raising the defence uses force, not merely to counter an actual attack, but to ward off or prevent an attack which he honestly anticipated. In that case, however, the anticipated attack must be imminent […]
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3.4.4 Self-defence may be used by an antagonist
Key case: R v Forrester [1992] Crim LR 792 (CA)
Facts: F was a tenant of W who had retained F’s deposit on termination of the tenancy. F and others burst into the premises and removed some of W’s property. Evidence suggested that while on the premises F could have been attacked by W. The judge told the jury: […] if F went in as a trespasser, though, how can he possibly say that he was being unlawfully attacked when W rushed at him, and if he was not unlawfully attacked when W rushed at him,
how can there be any room for any suggestion that he was merely defending himself by any blow that he might have struck subsequently? Well, it is a matter for you. You have got to try this case according to the evidence.
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Key case: R v Forrester [1992] Crim LR 792 (CA) Judgement
Held: His appeal against conviction for assault was allowed. It was held that this direction was, in effect, removing from the jury’s consideration the issue of whether or not F was attacked by W, in
such a way as to entitle him to use reasonable force to defend himself. Whether or not F was a trespasser did not entitle W to use excessive force to remove him. F would be entitled to rely on self-defence if W used excessive force in attempting to remove him, if that was what W was trying to do.
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Key case: R v Rashford [2005] EWCA Crim 3377 (CA)
Held: The Court of Appeal held that self-defence is not automatically precluded in a situation where the defendant was the initial aggressor and the victim retaliated. The success of the defence would depend upon the circumstances of the case. The court made it clear that selfdefence is available to the person who started the fight if the person whom they attack not only defends themselves but goes over to the offensive. It would then be for the jury to decide whether or not the defendant honestly believed that it was necessary for them to use force to defend themselves and whether the amount of force they used was reasonable.
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Key case: R v Keane and McGrath [2010] EWCA Crim 2514
The Court of Appeal said:
The Criminal Justice and Immigration Act 2008, s 76 did not alter the law as it had stood for many years […]. It was not the law that where a defendant had either started the fight with the victim, or entered it willingly, that would always and inevitably be a bar to self-defence arising. Self-defence could arise in the case of the original aggressor, but only where the violence offered by the victim was so out of proportion to what the original aggressor did that the roles were effectively reversed […]
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3.4.5 Force can be used against an innocent third party
Key case: R v Hichens [2011] 2 Cr App R 26
Facts: In this case, D had moved in with a friend (Y), but Y’s ex-boyfriend objected to the arrangement. He had come to the flat twice and threatened D. The police were called on both occasions, and warned the ex-boyfriend to stay away. On one previous occasion he had gained
access to the flat and attempted to fight D. The ex-boyfriend came to the flat again and Y wanted to let him in. D urged her not to, and slapped her across the face when she would not listen to him. D claimed that he had used reasonable force to prevent the commission of a crime/act in selfdefence, since, if the ex-boyfriend had entered the flat, there might have been an altercation
between them.
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Facts of the case
In response to a jury question, the judge stated that Y was not about to commit a crime, and the possibility that the ex-boyfriend might do so was not sufficient to justify D’s actions in slapping her. D was convicted. He appealed, submitting that the judge had erred in directing that selfdefence was not available to him.
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Judgement
Held: The appeal was dismissed. However, the court did confirm that this defence was capable of
extending to the use of force against an innocent third party to prevent a crime being committed by someone else. The court felt that facts capable of giving rise to such a defence would only rarely be encountered and might include:
* A police constable bundling a passer-by out of the way to get at a person the constable
believed was about to shoot a firearm or detonate an explosive device; or
* A person seeking to give car keys to another to enable them to drive and X, believing that other to be unfit to drive through drink, knocked the keys out of the first person’s hands and retained them.
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3.5 The response: The level of force the defendant used in response
At this point the jury has concluded that the defendant believed that force was necessary because they or someone else was facing an imminent attack, or D believed they were facing an imminent attack. The jury must go on to consider the level of force used in response to that threat. The level of force must be reasonable. The CJIA 2008 (as amended) works on the assumption that what is reasonable will depend on the circumstances in which the force is used and differentiates
between:
* Non-‘householder’ cases; and
* ‘Householder’ cases.
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3.6 Non-‘householder’ cases
The relevant provisions of s 76 CJIA 2008 are:
(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question […]
(4) If D claims to have held a particular belief as regards the existence of any circumstances—
(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes
of subsection (3), whether or not—
i. it was mistaken, or
ii. (if it was mistaken) the mistake was a reasonable one to have made.
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Objective test
(5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to
intoxication that was voluntarily induced.
(6) In a case other than a householder case, the degree of force used by D is not to be
regarded as having been reasonable in the circumstances as D believed them to be if it was
disproportionate in those circumstances.
(7) In deciding the question mentioned in subsection (3) the following considerations are to be
taken into account (so far as relevant in the circumstances of the case)-
(a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the
exact measure of any necessary action; and
(b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that
only reasonable action was taken by that person for that purpose.
(8) Subsection (7) is not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).
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Key case: R v Owino [1996] 2 Cr App R 128 (CA)
The essential elements of self defence are clear enough. The jury must decide whether the defendant honestly believed that the circumstances were such as to require the use of force to
defend himself from an attack or a threatened attack. In this respect a defendant must be judged in accordance with his honest belief, even though that belief may have been mistaken. But the jury must then decide whether the force used was reasonable in the circumstances as he believed them to be.
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R v Harvey [2009] EWCA Crim 469
It is also worth noting that the Court of Appeal held in R v Harvey [2009] EWCA Crim 469 that the defendant must be judged not just on the circumstances as they believed them to be, but also on the danger as they believed it to be.
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R v Press and Thompson [2013] EWCA Crim 1849
Also, in R v Press and Thompson [2013] EWCA Crim 1849 a soldier, who had just completed a tour
of Afghanistan, was allowed to rely on psychiatric evidence that he suffered from post-traumatic stress disorder to substantiate his mistaken beliefs. Therefore, in considering the force used, the jury must decide if the force used was objectively reasonable, given the facts as the defendant subjectively believed them to be s 76(3), s 76(4) and s 76(6). Several cases have emphasised that, when considering whether the force used was reasonable, the jury must bear in mind that the defendant may have acted ‘in the heat of the moment’.
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Key case: A-G’s Reference for N Ireland(No 1 of 1975) [1977] AC 105 (HL)
Lord Diplock
The jury should remind themselves that the postulated balancing of risk against risk, harm against harm, by the reasonable man is not undertaken in the calm analytical atmosphere of the court room after counsel, with the benefit of hindsight, have expounded at length the
reasons for and against the kind of degree of force that was used by the accused; but in the brief second or two which the accused had to decide whether to shoot or not and under all the stresses to which he was exposed.
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Key case: Rv Palmer [1971] AC 814 (PC)
Lord Morris
If there has been an attack so that defence is reasonably necessary, it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken
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The two points made by s 76(7) replicate the common law:
* Section 76(7)(a):
- ‘that a person acting for a legitimate purpose may not be able to weigh to a nicety the
exact measure of any necessary action’ is derived from Palmer v R; and
- ‘in the circumstances one did not use jewellers’ scales to measure reasonable force’ comes from Geoffrey Lane J in Reed v Wastie[1972] Crim LR 221.
* Section 76(7)(b): ‘that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose’ is also taken from R v
Palmer.
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3.7 What is a ‘householder case’?
Under s 76(8A)-(8F), householder case is one where the defendant:
* Relies on the common law defence of self-defence: ie protecting yourself or another but not protecting property, preventing a crime or assisting in the arrest of an offender.
* Uses force while in or partly in a building, or part of a building, that is a dwelling or is forces
accommodation (or is both):
- ‘Building’ includes a vehicle or vessel; and
- ‘Part of a building, that is a dwelling’ includes places of work and internal access routes:
◦ If the defendant or another person dwells in part of a building; and
◦ Another part of the building is a place of work for D or another person; and
◦ You can move between the dwelling and place of work through an internal access route.
- Is not a trespasser at the time the force is used; and
- Believed the victim to be in, or entering, the building or part as a trespasser.
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Section 76(8A)–(8F) CJIA 2008
(8A) For the purposes of this section “a householder case” is a case where —
a) the defence concerned is the common law defence of self defence,
b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),
c) D is not a trespasser at the time the force is used, and
d) at that time D believed V to be in, or entering, the building or part as a trespasser.
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8B
a) a part of a building is a dwelling where D dwells,
b) another part of the building is a place of work for D or another person who dwells in the first part, and
c) that other part is internally accessible from the first part, that other part, and any internal means of access between the two parts, are each treated for the purposes of
subsection (8A) as a part of a building that is a dwelling
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8C
a) a part of a building is forces accommodation that is living or sleeping accommodation
for D,
b) another part of the building is a place of work for D or another person for whom the first part is living or sleeping accommodation, and
c) that other part is internally accessible from the first part, that other part, and any internal means of access between the two parts, are each treated for the purposes of
subsection (8A) as a part of a building that is forces accommodation.
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8D-8F
(8D) Subsections (4) and (5) apply for the purposes of subsection (8A)(d) as they apply for the
purposes of subsection (3).
(8E) The fact that a person derives title from a trespasser, or has the permission of a
trespasser, does not prevent the person from being a trespasser for the purposes of subsection
(8A).
(8F) In subsections (8A) to (8C) “building” includes a vehicle or vessel, and “forces
accommodation” means service living accommodation for the purposes of Part 3 of the Armed
Forces Act 2006 by virtue of section 96(1)(a) or (b) of that Act.
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3.8 The test for ‘householder’ cases
Section 76(5A) CJIA 2008 states:
In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances. Here, the objective was to make it easier for a defendant who is a ‘householder’ to make use of the defences. It had been thought that this provision brought about a change in the law and that the use of force in householder cases did not have to be reasonable.
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Key case: R (on the application of Denby Collins) v the Secretary of State for Justice [2016] EWHC 3
However, this was held not to be the case by the High Court. Here, the Court was considering what the test for self-defence should be as a result of the amendments and whether the
amendments were in accordance with Article 2, European Convention of Human Rights
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Sir Brian Leveson concluded:
Having regard to the analysis above, I am satisfied that s. 76(5A) of the 2008 Act does not extend the ambit in law of the second limb of self-defence but, properly construed, provides
emphasis to the requirement to consider all the circumstances permitting a degree of force to
be used on an intruder in householder cases which is reasonable in all the circumstances
(whether that degree of force was disproportionate or less than disproportionate).
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Sir Brian Leveson
To summarise, on a proper construction of s. 76(5A), its true meaning and effect is:
I. Whether the degree of force used in any case is reasonable is to be considered by reference
to the circumstances as the defendant believed them to be (the common law and s. 76(3));
II. A householder is not regarded as having acted reasonably in the circumstances if the
degree of force used was grossly disproportionate (s. 76(5A));
III. A degree of force that went completely over the top prima facie would be grossly disproportionate;
IV. However, a householder may or may not be regarded as having acted reasonably in the circumstances if the degree of force used was disproportionate.
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Sir Brian Leveson
Said that for householder cases there is a two-part test for the second limb of self-defence. First, the jury must be asked if the force was grossly disproportionate in the circumstances as the defendant believed them to be. If it was, there can be no defence. If it was not, secondly, the jury must be asked whether the level of force was reasonable.
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Purpose of making a different category
He noted that the effect and purpose of making a different category of householder cases was to allow a discretionary area of judgment with a different emphasis from non-householder cases. The most obvious example would be the extent to which it is appropriate to take account of the opportunity to retreat. He said it was clear that, as with non-householder cases, the jury should
take into account the matters referred to in R v Palmer and codified in s 76(7) CJIA 2008– that the level of force should not be weighed to a nicety and that if the defendant believed in a moment of unexpected anguish that they were using reasonable force, that was very good
evidence that the force was reasonable.
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Key case: R v Ray(Steven) [2017] EWCA Crim 1391
The Court of Appeal met with an especially enlarged number of five judges including the Lord Chief Justice to decide the matter in this case. It approved the approach in R (on the application of Denby Collins) v the Secretary of State for Justice
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Lord Thomas of Cwmgiedd CJ
Said that once the jury had determined the facts as the defendant believed them to be it should determine whether the use of force was grossly disproportionate. If it was, then the degree of force used was unreasonable and the defence would not be available. If the jury decided the degree of force was not grossly disproportionate, it should then decide whether the degree of force was reasonable. The use of disproportionate force which is not
grossly disproportionate may or may not be reasonable
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Unreasonable degree of force
He said it could be pointed out to the jury that what might be an unreasonable degree of force
used when confronting an aggressive individual in a club might not be so when used by a householder confronting an intruder in their home and it is important that the jury assess the defendant’s actions by reference to the circumstances in which D found themselves and as D
believed them to be.
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Spell out the kind of circumstances w
It would often be helpful, for that purpose, to spell out the kind of circumstances which the jury
should consider in determining whether the degree of force used by a householder was reasonable. These might, for example, include the shock of coming upon an intruder, the time
of day, the presence of other help, the desire to protect the home and its occupants, the vulnerability of the occupants, particularly children, or the picking up of an object (such as a
knife or stick that would be lawfully to hand in the home), the conduct of the intruder at the time (or on any relevant previous occasion if known to the defendant). Each of these might lead to the view that what was done, such as using a knife, which otherwise in a different context might be unreasonable, in the circumstances of a householder coming on an intruder might, in all the circumstances of such a case, be reasonable.
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3.9 Summary
This section considered one of the general defences to a crime: self-defence.
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Self-defence
Can be used to protect yourself, another or property from attack or imminent anticipated physical attack. It can also be used to prevent a crime or assist in the arrest of an offender. * It is a defence that is found in both common law and s 76 CJIA (as amended). The defendant is entitled to rely on the defence if the trigger and response are satisfied:
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The trigger
The defendant honestly believed that the use of force was necessary.
◦ Subjective test, whether the belief is reasonable or not. However, if a mistaken belief is due to the voluntary intoxication of the defendant, then the defendant will not be able to rely on their mistake.
◦ There is no duty to retreat but the opportunity to do so may be a relevant factor.
◦ It can be used by an antagonist and it can be used against an innocent third party.
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The response
The level of force the defendant used in response was objectively reasonable in the circumstances and the danger as the defendant subjectively believed them to be.
129
Reasonable
Depends on whether it is a non – ‘householder’ case or ‘householder’.
130
Non-‘householder’ cases
* Force will not be reasonable if it was disproportionate. In deciding this, the jury must take into account that:
- A person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
- That evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only
reasonable action was taken by that person for that purpose.
* The defendant can be mistaken and the mistake does not need to be a reasonable one.
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‘Householder’ cases
A householder case is one where D:
* Acts to protect themselves or another;
* Uses force while in or partly in a building, or part of a building, that is a dwelling (including
vehicles, vessels and buildings that are dwellings and places of work if connected by an
internal access route);
* Is not a trespasser at the time the force is used; and
* Believed the victim to be in, or entering, the building or part as a trespasser.
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Trigger
The ‘trigger’ is unchanged but the ‘response’ is more lenient towards householders. The jury must be asked two questions:
* Was the force grossly disproportionate in the circumstances as D believed them to be? If it was, there can be no defence.
* If not, was the level of force reasonable? The jury should take into account that the level of
force should not be weighed to a nicety and that if the defendant believed in a moment of unexpected anguish that they were using reasonable force, that was very good evidence that the force was reasonable. R v Ray (Steven) listed circumstances which the jury should consider in determining whether the degree of force used by a householder was reasonable eg the
shock of coming upon an intruder, the time of day, the vulnerability of the occupants, particularly children etc.
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