Self defence Flashcards
(12 cards)
Self defence intro
Common law defence and defined under S.76 of the criminal justice and immigration act 2008 as the test for reasonableness. It is also a complete defence, including murder as the D’s use of force is justified in the circumstances.
What are the 2 key elements of the defence
- Was the use of force necessary in the circumstances - was force needed at all?
- Was the force used reasonable in the circumstance
Must be necessary to use some force
Subjective test based on the D’s genuine belief in those circumstances. D can be mistaken but can still plead the defence - R v Williams
Degree of force must be reasonable
This is an objective test. A jury must ask themselves, based on the facts the D believed them to be: would a reasonable person regard the force as reasonable or excessive.
Even if an act was deemed necessary the resulting action may not be seen as reasonable. The reaction to the threat is always integral - R v Clegg
The threat of force must be immediate for SD - R v Hussain
Pre-emptive strike
There is no law to say someone cant, in the right circumstances, hit another person first in the act of self defence rather than wait to be attacked - A-G Ref (No. 2 of 1983)
Duty to retreat
Failure to retreat and avoid conflict does not provide evidence the D was not acting in self defence. Relevant to test of reasonableness but not necessary for D to walk away - R v Bird
R v Bird
B’s conviction was quashed. Evidence of a retreat is helpful but not essential
A-G Ref (No. 2 of 1983)
A person is entitled to make preparations in self-defence for a future attack against them
R v Clegg
D was not acting in self defence as the last shot was excessive force as the threat had passed
R v Martin
Not self defence as D shot whilst V was trying to escape
R v Williams
An honest but mistaken belief will allow defence to operate
R v Hussain
The court ruled that self-defence can be used only when the threat is immediate
