general defences: self-defence

Question 1

what are the two authorities that govern self-defence?

Answer 1

common law and statute

Question 2

explain the two authorities which govern self-defence

Answer 2

common law defence: self-defence is a permissible defence where a person uses force that is reasonable in the circumstances to protect themselves, another and/or their property

statutory defence:
- governed by S3(1) Criminal Law Act 1967
- self-defence is a permissible defence where a person uses force that is reasonable in the circumstances to prevent a crime, to assist the lawful arrest of an offender, to assist the lawful arrest of a suspected offender or to assist the arrest of someone who has escaped from custody

Question 3

what governs statutory defences?

Answer 3

S3(1) Criminal Law Act 1967

Question 4

explain: was force necessary?

Answer 4

• if the force was unnecessary, the defence is unavailable (Hussain and another)
• if a person had a genuine mistaken belief that force was necessary when it was not, the defence is still available (Williams)
• if the ‘genuine’ mistaken belief to force being necessary was due to the D being intoxicated, the defence is unavailable (O’Grady)
• if the D had the opportunity to retreat from the threat, they are under no obligation to do so (Bird)
• D can take reasonable steps to prepare for a threatened attack (Attorney General Reference (No. 2 of 1983)
• if the D is the initial aggressor, the defence can still be available but only if the V responded disproportionately to the threat, resulting in a serious threat to the well being of the D (Rashford)
• if the D initiates an attack, so the V responds with violence, so they can then use greater violence, the defence is unavailable (Rashford)

Question 5

explain: was the force used reasonable in the circumstances?

Answer 5

• the reasonableness of the force used is based on how the D perceived the circumstance (Palmer)
• if the force used was unreasonable in the circumstance, the defence is unavailable (Martin)
• if the threat is over, the force is unreasonable in the circumstance (Clegg)
• if the D uses disproportionate force, it will be judged as unreasonable given the circumstances and the defence will be unreasonable (S76(6) Criminal Justice and Immigration Act 2008)
• however, if disproportionate force was used by D against intruders into their home, the defence can still be available (76(5A) Criminal Justice and Immigration Act 2008) as long as:
  
  • they did not appreciate the exact measure of necessary action required (S76(7)(a) Criminal Justice and Immigration Act 2008)
  • they honestly and instinctively believed they took reasonable action (S76(7)(b) Criminal Justice and Immigration Act 2008)