Self-defence Flashcards
Introduction to self defence
It is a complete defence, as D’s use of force is justified in the circumstances.
Set out in both common law and statute.
Statutory defence is under s3 of Criminal Law Act 1967- actions taken to prevent a crime or arrest an offender, suspected offender or person at large will be justified.
It must be neccessary to use force and be reasonable to do so. The law is clarified in s76 Criminal Justice and Immigration Act 2008 as to the test of reasonable.
2 main questions
- Was the force used necessary?
- Was the force used reasonable/proportinate in the circumstances?
Was force necessary?
s76(3) Criminal Justice and Immigration Act 2008
Subjective test:
Force will be deemed necessary in the circumstances which exist or which D genuinely believed existed- it doesn’t matter if they didn’t seem necessary to a reasonable person.
GLADSTONE WILLIAMS-
Drunken mistake
S76(5) If D made the mistake because they were voluntarily intoxicated, they cannot rely on their mistaken belief.
The effect of mental conditions on the defence
If the D’s genuine belief is based on delusions resulting from a psychiatric condition the defence may be considered. This was considered in Oye- wasn’t guilty under the reason of insanity rather than self-defence.
However, the reasonableness of the force used will still be judged by an objective standard. Press & Thomson- D’s were soldiers suffering from PTSD who launched an unprovoked + vicious assault on on innocent victim. While the PTSD might cause than to misunderstand whether defensive action is necessary, the reasonableness in the degree of force used is objective.
Is a pre-emptive strike allowed?
S6(6a) CJIA 2008- A person is under no duty to retreat when acting for a legitimate purpose but the possibility that the person could’ve retreated should be considered as a relevant factor in deciding whether he degree of force was necessary.
Bird - D is under no duty to retreat & doesn’t have to wait for an attack to start. Striking first doesn’t mean that force is unnecessary.
AG’s Ref No.2 1983- D’s shop had been attacked by rioters. Fearing further attacks, he made petrol bombs. He was able to rely on self defence as D can make preparations in self defence.
What if D is the aggressor?
D may use force if V’s response is wholly disproportionate and seriously threatens D. D’s force must be no more than necessary to protect themselves from serious injury or death.
Rashford- D’s conviction upheld as he ad not actually been placed in a position where it was necessary to use force when he stabbed V through the heart.
Was the force used reasonable/proportionate?
-S76(6) CJIA 2008- The degree of force won’t be considered reasonable if it was excessive, except in householder cases. (Objective test)
-Palmer- It will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his defensive action.
-Form of defence doesn’t need to be equal to V (e.g. one may have a weapon, one may not)
-Force that was once reasonable/proportionate may become disproportionate if D doesn’t stop when danger ends.
-Hussain- D & family taken captive by 3 men, D broke free & drove away with a cricket bat and caught one of the men and assaulted him with the bat, leaving him with brain damage. Defence failed as beating V round the head doesn’t count as reasonable force to wait for the police to make a lawful arrest.
-Clegg- Final shot fired nice the car was a long way past the soldier, this was excessive force.
-Martin- Defence failed as burglars were leaving when D shot V.
Householder cases
-S76(5a) CJIA 2008- force which is grossly disproportionate will not be seen as reasonable.
-To be a householder case the force must be used by D while (partly) in a building that is a dwelling; D must not be a trespasser; and D must have believed V was a trespasser.
-Ray- D & V’s former partner spent time in the former shared home. In the course of a fight, fearing V would use a knife, D fatally stabbed V. Defence failed as seen as grossly disproportionate but confirms law:
1. If force was reasonable depends on circumstances as D believed them to be.
2. A householder isn’t regarded as having acted reasonably in circumstances if force was grossly disproportionate.
3. Jury will decide whether force is disproportionate (allowed) or grossly disproportionate.
Collins- V broke into D’s house. D caught him in a headlock for 6 minutes and V died. CPS elided not to prosecute claiming the purpose of S76(5a) was to allow discretion based on cases with a different emphasis.
Statutory (public) defence
S3(1) Criminal Law Act 1967 states that A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting in the lawful or assisting in the law feel arrest of (suspected) offenders or persons unlawfully at large.
Williams- V stabbed D & took necklace from him. V ran away & D caught up with him & fatally stabbed him. Defence not available. Force = unreasonable.
