General defences - self-defence

Question 1

Is self-defence a full defence?

Answer 1

Yes it is a full defence
Successful - acquittal
Unsuccessful - liability for full offence

Question 2

Common law for self defence (3)

Answer 2

• Duffy
  o Self-defence is a common law defence
• Williams (Gladstone)
  o Covers unjustified attacks/threats to oneself or others
• Hussey
  o Covers attacks/threats to one’s property

Question 3

Statute for self-defence

Answer 3

• Section 3 Criminal Law Act 1967
  o 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
  o Statute is about prevention of crime whereas common law is about defending yourself/others/property

Question 4

Parameters of self-defence (3)

Answer 4

• R v Morris
  o not confined to offences of violence; can be relied on where D uses force to prevent other types of crime
  o D was taxi driver who drove onto pavement and knocked someone down who was trying to leave taxi without paying. Victim broke his ankle. D believed that he was preventing crime of leaving without payment. The court confirmed that defence is available to other crimes, not just crimes of violence. Can be relied upon where D uses force to prevent other types of crime.
• DPP v Bayer
  o ‘defence of property’ not available if no unlawful/criminal act committed
• Jones
  o crime means criminal act under UK law, not international law

Question 5

Gendered nature of self-defence (4)

Answer 5

• Need for threat to be imminent – imminency is a problem for women
  Argument that often because of issues of size and strength between men and women, women do not respond immediately – concerns of domestic violence cases (battered women) – a more lenient approach should be taken in this context
• Strict approach for one-time adversarial encounter e.g. fight in a pub but should be lenient for battered women
• Edwards
  o Law continues to treat women homicide defendants, as if they were indeed men in respect of size, strength, ability to box, spar, and land a punch. So when women defend themselves against male violence with an instrument as they are inclined to do and as a result kill, their “mode of resentment” is treated for all legal purposes as “excessive.” Women who use weapons in self-defence, do so in order to arm themselves against the disproportionate force of men in order to achieve a notional equality between unequal’s
• Law Commission 2004
  o Gendered nature of self-defence partly recognised by Law Commission
  o It is insufficient to weigh the weapons used on each side; sometimes there is an imbalance in size and strength. You must also consider the relationship between the defendant and [the other party]. A defendant who has experienced previous violence in a relationship may have an elevated view of the danger that they are in. They may honestly sense they are in greater danger than might appear to someone who has not lived through their experiences. All these matters should be taken into account when considering the reasonableness of the force used.

Question 6

Concern for self-defence in householder cases (1)

Answer 6

• Tony Martin case
  o concerns from public that law prioritised burglars as opposed to the householder – reform was needed. Conservatives at time played on this to win votes at general election by saying they would implement this reform if they came into office.
• Law on self-defence was reformed to extend the defence to householders that are faced with a burglar in their house and they could use a great level of force. Allows householders to use more disproportionate force

Question 7

Self-defence contrary to Art 2 ECHR (right to life)? (2)

Answer 7

• Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
  In defence of any person from unlawful violence
  In order to effect a lawful arrest or prevent the escape of a person lawfully detained.
• Andronicou
  o force must be absolutely necessary according to ECHR
• Collins
  o In UK force is necessary in reasonable circumstances – difference in language does not mean that it contravenes article 2, householder reforms are still in line with ECHR

Question 8

Elements of self-defence (2)

Answer 8

1. D believes the use of force is necessary – the trigger (Subjectively Assessed)
2. The amount of force used must be reasonable – the response (Objectively Assessed)

Question 9

Element 1 of self-defence - must not be acting in revenge (2)

Answer 9

• R v Bird
  o Must not be acting in revenge
• R v Hussain (Tokeer)
  o 3 men including victim broke into Munir’s house. Threatening him and family with weapons. M threw a table at victim, fled and then was chased by M’s brother. T caught up with victim and victim suffered fractured skull etc as was hit with bat.
  o Court held there was no doubt that only person committing a crime inside the house was the victim but the crime came to an end when the victim left the house.
  o When being chased down the street, the motive was revenge – no one was acting in self-defence. This sustained attack was not lawful at this point.

Question 10

Element 1 of self-defence - unknown circumstances justifying use of force (1)

Answer 10

• Dadson
  o D cannot rely on the justifying circumstances of his or her actions of which he or she is not aware
  o D was constable on duty watching over woodland area from which timber had been stolen. Victim emerged carrying stolen timber. D called out to him and victim ran away. D shot victim as he was running away so that he could then arrest him. D charged with shooting V with intent to cause GBH. Claimed he was shooting to arrest. Victim did have prior convictions for stealing wood so was a felon but D did not know this at the time. So could not argue his use of force was justified.

Question 11

Element 1 of self-defence - Ability to retreat (2)

Answer 11

• Julien
  o No duty to retreat but should demonstrate from your actions that you do not want to fight
• Bird and s76 (6A) CJIA
  o Failure to demonstrate unwillingness to fight is simply one factor that may be taken into consideration

Question 12

Element 1 of self-defence - imminence of attack and pre-emptive strike (2)

Answer 12

• Beckford
  o Circumstances may justify a pre-emptive strike
  o D was police officer and claimed person he shot had a gun and had been shooting at him. This was a mistaken belief. A man about to be attacked does not have to wait for his assailant to strike first. Must look at the circumstances surrounding facts of case
• Devlin v Armstrong
  o Anticipated attack must be imminent – a problem for women?
  o Riot in Londonderry, D urged others to build barricade and launch petrol bombs at police officers. Believed that police were about to attack against protesters. This was pre-emptive strike in anticipation of police being about to attack. Court held that can act to anticipate the threat. But the threat must be imminent. This actions of throwing petrol bombs did not respond to imminent threat, the force used was excessive and could not plead self-defence.

Question 13

Element 1 of self-defence - preparing for an attack with weapons (3)

Answer 13

• Fegan
  o Can arm yourself for need for self-defence if there is a need for it and would not be guilty for harming someone in response
  o However would still by guilty of owning a firearm for example
  o Catholic married Protestant and live in Protestant area in Ireland. Him and wife were subject to threats and beatings. Bought a revolver and ammunition and hid in cupboard in his house. Convicted of unlawful possession of firearm. Argued he had it for purpose of self-defence
• AG’s Reference (No.2 of 1983)
  o D made petrol bombs in time when extensive riots were taking place. D claimed to have made them for self-defence. Court said that object for which he had made the bombs was lawful but he had committed another offence of manufacturing and storing explosive material without a licence.
• Evans v Hughes
  o H found on public highway carrying short metal bar. Charged with being in possession of offensive weapon. His argument was that he had been attacked 7 days prior to carrying it for self-protection. Court found he had reasonable cause to fear a violent attack and that he was carrying it for self-defence and not aggressive purposes. But this was a borderline case – up to 7/8 days became questionable if it was still reasonable to be carrying the metal bar.

Question 14

Element 1 of self-defence - mistaken belief about the need to defend (3)

Answer 14

• Williams (Gladstone)
  o We judge D according to his view of the facts even if it turns out to be mistaken belief – subjective test
  o A genuine belief – need not be reasonable
  o Williams saw M arresting a youth. M said he was a police officer but failed to produce a warrant card. Williams believed that youth was being unlawfully assaulted by M and assaulted M in response. M was actually a police officer
• S76(4) CJIA 2008
  o Reasonableness of belief is relevant to the question whether D genuinely held it BUT
  o If D did genuinely believe then D can rely on that belief whether or not it was mistaken, or the mistake was a reasonable one to make
• R v Yaman
  o D owned kebab shop and saw two men in his shop when it was closed. D believed a burglary was taking place so went in and hit one of the men. Turns out one man was engineer, another was locksmith and another was warrant officer. They had valid reason to be in shop.
  o Judge invited jury to consider whether D’s mistaken belief was reasonable. Held that judge misled the jury. It is a subjective test so this misled the jury, the test should be of it was a genuine mistaken belief.

Question 15

Element 1 of self-defence - intoxication and mistaken belief (2)

Answer 15

• R v O’Grady
  o If the mistaken belief is induced by voluntary intoxication, D cannot rely on private defence
• S76(5) CJIA
  o Even if you would have made same mistake whilst sober, cannot rely on this mistake if you are voluntarily intoxicated – cannot rely on self-defence

Question 16

Element 2 of self-defence - Non-householder cases (5)

Answer 16

• AG for NI Reference
  o Decision to defend is made in quick decision under pressure not in hindsight – jury should take this into account
• Palmer v The Queen
  o If a jury thought that in a moment of unexpected anguish a person attacked 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.
• Owino
  o Force used must be objectively reasonable in the circumstances as D subjectively believes exist
• S76(6) CJIA 2008
  o 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
• R v Keane and McGrath
  o Reasonable and proportionate mean the same thing

Question 17

Element 2 of self-defence - householder cases (4)

Answer 17

• Crime and Courts Act 2013 inserts subsection 5A into section 76 of the Criminal Justice and Immigration Act 2008
  o 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.
  o Allows householder to use greater degree of force to defend themselves from intruders – does this violate Article 2?
• R (Collins)
  o Intruder entered his house through unlocked door. Collins confronted intruder and forced him to ground and sat on him until police arrived. Other people were concerned that level of force was too much. Victim sustained serious brain injuries due to lack of oxygen. CPS decided not to prosecute and instead was investigated by specialist. Concluded that the householder should believe that their use of force is necessary
  o Adding the term ‘gross’ it allows householders to use disproportionate force – this challenges Article 2 right to life – Collins case was challenged
  o Two separate questions to be put to jury in a householder case:
  1. Was the degree of force used by D grossly disproportionate in the circumstances as he believed them to be. If no then
  2. Was the degree of force used reasonable in the circumstances as he believed them to be? If reasonable he has a defence
• R v Ray
  o Court supported the language of reasonableness in Collins – greater flexibility for householder cases
  o Jury should consider:
  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), picking up of an object
• R v Day
  o Extends householder provision to guests in a property

Question 18

Element 2 of self-defence - D’s characteristics distorting perception of reasonable force (4)

Answer 18

• Martin (Anthony)
  o Tony Martin was living in remote farmhouse when intruders came. Got shotgun and fired at them as they were running away. TM had paranoid personality disorder and argued this was relevant to both parts of self-defence. Only in exceptional circumstances can you take into account psychiatric circumstances. Court rejected his clam for self-defence.
• R v Canns
  o D believed evil spirits were attacking him. These were actually police officers. He could not use belief of evil spirits as a self-defence claim. To allow this would have disconcerting implications and could mean the more insanely deluded you are, the greater force could be used – this would not be right and the court should step in to prevent this.
  o The law is that defendant’s do not set their own standards of reasonableness …. It is for the jury, considering all circumstances, but not the psychiatric condition, to set the standard of reasonableness
• Oye (Seun)
  o An insane person cannot set their own standard of reasonableness as to the degree of force
• Press & Thompson
  o Question is for the jury to determine if amount of force was reasonable

Question 19

Element 2 of self-defence - defence against a provoked attack (2)

Answer 19

• Browne
  o Self defence not available if you deliberately provoke an attack with intention of injuring/killing someone
• R v Keane
  o Self defence may arise in the case of an original aggressor but only where the violence offered by V was so out of proportion to what the original aggressor did that in effect the roles were reversed

Question 20

Element 2 of self-defence - excessive force (2)

Answer 20

o If force used is excessive, self-defence will fail
- Clegg
o Self-defence is a full defence – either fully liable or not
o Is this a problem for women?
- Martin (Anthony)
o Question about reducing to manslaughter is a question for Parliament not the courts
o But in murder cases you could then consider the partial defence of Loss of Control due to fear of serious violence or even things said or done.

Question 21

Reform for self defence (1)

Answer 21

• Law Commission Report 304
  o New defence of loss of control has addressed the self-defence defence – no further reform is needed to self-defence
  o However this has still not addressed gender concerns – problem for women

Question 22

Critical commentary for self-defence (4)

Answer 22

• Thomas (householder defence)
  o A jury must be directed to take account of the householder’s actions to the same extent that they would a non-householder, namely whether the force used was nevertheless reasonable in the circumstances – Parliamentary intentions were appropriately followed in Collins
  o There is the potential that Article 8 ECHR could be infringed if Parliament were to say that a householder must regulate their alcohol intake within their own homes on the basis that no defence can be availed if a mistake was induced by voluntary intoxication. It would be, it is argued, absurd to suggest that householders regulate their consumption of alcohol
  o At present, the householder defence may only be availed were the force was used in defence of oneself or another, as opposed to defence of property – how can a distinction be drawn between these two in practice
• Elliott (householder defence)
  o Under Art 7 ECHR, criminal law must be certain, predictable and clear – risk that changes introduced by 2013 Act introduce uncertainty into the law as distinction between ‘disproportionate’ and ‘grossly disproportionate’ are unclear
• Wake (problem for battered women)
  o The legitimisation of disproportionate force under s.43 unfairly places the ‘startled householder’ in a better position than every other defendant claiming self-defence
  o It is unjust to allow an affirmative defence in home invasion cases but preclude that same defence where the battered woman kills her abuser simply because the person is known to her
  o Battered woman is only allowed partial defence under loss of control, whereas householder is allowed full defence of self-defence
  o Suggests implementation of new partial defence of self-preservation/psychological self-defence for battered women
• McColgan (problem for battered women)
  o Jury’s assessment of the reasonableness of the battered woman’s conduct regarding self-defence should be judged considering the abuser’s past conduct
  o A battered woman may anticipate an attack from abuser previous actions leading up to a previous attack and therefore pre-empt another attack – jury should consider battered women’s ability to apprehend danger even where there is no threat apparent to an onlooker