Rationale-based defences -> general + self-defence Flashcards
What are the 3 defences?
- self-defence / defence of property
- duress
- necessity
How do they compare?
1. did you do the right thing?
2. is it a justification?
3. what is its relation to force?
- self-defence + necessity (arguing that you did the right thing or the best thing that you could do)
-> duress -> you did the wrong thing but you want to be excused - self-defence + necessity (it is a justification -> it is permission in the circumstances)
-> duress -> tolerance, not a justification - self-defence -> force applied to the person directly
-> necessity -> usually not about D applying force against source of threat
-> duress -> most often D is applying force to another person not involved with the threat
What is the definition of self-defence?
- If D honestly believes that V is threatening the person or property of D
- or any other person without lawful authority
- then D can use such force against V or V’s property
- as is reasonably necessary
- in order to defend against the attack
Which case establishes self-defence?
Beckford v The Queen [1988] AC 130 (PC)
- Against who must the force be directed against?
- which case states an exception to this?
- against the property or person of the aggressor
- BUT R v Hichens [2011] -> in certain circumstances, it is permitted to use force against an innocent third party in order to prevent a crime from being committed
What are the 2 parts to this defence?
- Subjective belief in the need for defensive force
- Objective reasonableness of the force D chooses to use
- Which Act do we look at for self-defence?
- and which section?
Criminal Immigration and Justice Act 2008
s.76
- What does s.76(1) say?
- can rely on defences in s.76(2)
- asks whether force was reasonable
- What does s.76(2) say?
- defences that you can use
- also s.3(1) CLA 1967 can apply
- What does s.76(9) say?
- special provisions for householder cases
What burden do the defence have?
- evidential burden to raise self-defence
What burden does the Prosecution have?
legal burden to disprove defence beyond reasonable doubt
What happens if the defence is effective?
- which case supports this?
- an all or nothing defence
- Palmer v The Queen [1971]
What does s.76(3) CJIA state?
- Which sections apply in connection with this?
states that in order to establish whether the force D used was reasonable → need to decide by reference to the circumstances as D believed them to be
- What does s.76(4) CJIA state?
- states that if D has a particular belief about the circumstances, the reasonableness of this belief will help establish whether D genuinely holds it
- BUT if D genuinely holds it, D can rely on it regardless of whether it was a mistaken belief, or an unreasonable belief
