self defence

Question 1

s.76 of the criminal justice and immigration act 2008 states what

Answer 1

the courts should consider two points:
-was the use of force necessary in the circumstances
AND
-was the force used reasonable in the circumstances

Question 2

“was the force necessary in the circumstances” is this an objective or subjective test

Answer 2

subjective
-d must be judged in the facts as he genuinely believed them to be

Question 3

mistake & self defence

Answer 3

s.76(3)&(4) CJ and Im act 2008 states circumstances are to be judged on how d genuinely believed them to be even if they were a mistake or unreasonable
R v williams and gladstone

Question 4

the effect of mental conditions on self defence

Answer 4

d genuine belief can include delusions resulting from a psychiatric condition or another condition such as PTSD
this was considered in r v oye who was no guilty by reason of insanity

Question 5

mistake self defence and intoxication

Answer 5

s.76(5) CJ and Im act 2008 makes it clear d can’t rely on self defence if they make a mistake as a result of being voluntarily intoxicated (o’grady)

Question 6

pre-emptive strike

Answer 6

the courts have made it clear that there is no duty to retreat before using force ( r v bird)

Question 7

defendant is the initial aggressor

Answer 7

even if the d is the initial aggressor they may use force if the victims response is wholly disproportionate and seriously threatens D
-this will only work if it wasn’t the D’s aim to give themselves an excuse to use much more serious violence (rashford)

Question 8

“was the force used reasonable in the circumstances” is this objective or subjective test

Answer 8

objective - a.76(6) CJ and Im act 2008 states the level of force is to be judged as the d believed them except in householder cases.
if the force d used is classed as excessive the defence will fail

Question 9

householder cases

Answer 9

s.76(5a) CJ and Im act 2008 states that force which is grossly disproportionate will not be seen as reasonable
this means householders can use disproportionate force to protect themselves and others in the house but not GROSSLY disproportionate

Question 10

characteristics to be a householder case

Answer 10

-force used by d must be when in or partly in a building that is a dwelling
-d must not be a trespasser
-d must believe that v was a trespasser

Question 11

test for self defence in a householder case

Answer 11

-was the degree of force the d used grossly disproportionate in the circumstances as they believed them to be? if yes they can’t use the defence

Question 12

if the degree of force the d used was not grossly disproportionate and it was reasonable in the circumstance d believed them to be then..

Answer 12

d can have a defence ( r v ray)

Question 13

things to consider

Answer 13

-threat needs to be real and imminent

Question 14

things to consider for the jury for the second test

Answer 14

-the facts of the case
-the facts as d believed them
-the circumstances of the attack
-the time available to d to decide his course of action
-the risk to D balanced against the risk of harm to V