Self-Defence Flashcards
(12 cards)
Introduce
Self-Defence
S.76 Criminal Justice and Immigration Act 2008 - Two part test
Apart of Self Defence
- Self Defence can be raised for any crime, if successful D is fully acquit,
- D raises defence, prosecution tries to disprove it, jury decides.
S.76 Criminal Justice and Immigration Act 2008, 1) The use of force must be necessary in circumstances as they appeared to D. 2) The actual degree of force used was reasonable
Describe
Necessary Force
S,76(3), Dewar v DPP
Apart of Self-Defence
S.76(3) - Must be proven the D thought it was necessary to use force. Dewar v DPP - This is judged by the circumstances thhat the D believed to exist and not the actual circumstances that were taking place.
Describe
Mistaken Belief as to use force
S.76(4), S.76(4), Williams
Apart of Self-Defence
S.76(4) - There can be a mistaken belief by D as to wether the force is necessary as long as mistake was reasonable to mistake. S.76(4), Williams - D should be judged according to his mistaken view of facts, regardless of if the mistake was reasonable or unreasonable
Describe
Reasonable and Excessive force
S.76(7), Martin, Hussain and Another
Apart of Self-Defence
S.76(7) - A person can't weigh to exact nicety amount of force to use in moment, evidence that D did only what they did out of instinct, is strong evidene of reasonable force.
Excessive Force
- V’s force or threatning must be ongoing when D uses force back.
Martin - Excessive if out of retaliation Hussain and Another - Excessive if out of revenge
Describe
Duty to retreat, Pre-emptive Strike, D as agressor
Bird, R v Deana, Salih, Rashford
Apart of Self-Defence Addtional Factors
Duty to retreat
Bird - D does not have a duty to retreat or be unwilling to fight.
Pre-Emptive Strike
R v Deana - There is no rule in law that a person mait wait to be struck before defending themselves. Salih - D can make preparation in self-defence, but there must be a threat of imminent attack or defence fails.
D as Agressor
- Depends on level of violence directed from D to V, and if necessary or reasonable.
Rashford - If D goes somewhere to exact revenge on the victim, doesn't automatically rule out self defence.
Describe
Householder Cases
S.43 of Crime and Courts Act 2003
Apart of Self-Defence Additional Factors
- Force must be used by D if V is partially or fully in building D dwells in.
- D can’t be a tresspasser themselves.
- D must believe V is a tresspasser
S.43 of Crime and Courts Act 2003 - The degree of force will only be unreasonable if grossly disproportionate
Describe
Intoxicated Mistake
S.76(5) of CJIA 2008
Apart of Self-Defence
S.76(5) of CJIA 2008 - D can't rely on a mistaken belief if mistake was made due to V being volunatrily intoxicated
Apply to an Exam Question
Flip
Apart of Self Defence
Necessary Force
Explain if the force was necessary – explain why the D thought that he had to use force.
Mistaken belief? If so, explain why the D made a mistake. ->
-> Explain if it was an honest mistake.
Reasonable Force
Explain why the D could/n’t weigh to an exact measure the nicety of necessary action – why was the D acting in the heat of the moment.
Explain why the D only did what they thought was necessary to stop the legitimate threat – explain why the D did/dint use reasonable force, e.g. enough force to stop the threat
Excessive Force
If the force is not reasonable, explain it is excessive and why.
Other Issues
Unwillingness to fight (if it applies) - Did the D show an unwillingness to fight? Why? State that this is not necessary
Pre emptive strike (if it applies) -Why did the D use a pre emptive strike? Why is there an imminent threat or not?
Agressor (if it applies) - Why is the D an aggressor? Why its it revenge?
Householder case (if it applies) - Was the force grossly disproportionate – why?
The Outcome
If the defence fails explain why
If the defence is successful state that the D can have a full acquittal
Evaluate
Defence Inconsistencies
- What is the principle for force used? What does this lead to?
- Is force needed clear in a situation? Who decides this hearing the case? Makes it hard to? This erodes the…
- What is D allowed under Dewar v DPP? How to describe the wording of the law? Any appropriate reform?
Apart of self-defence evaluations
- Force must be necessary, inconsistent deciscions.
- Not clear in situations, jury decides the reasonable amount of force, hard to predict the case, eroding rule of law.
- Honest mistake under Dewar v DPP, the law is vague, should state the necessary force allowed for each offence
Evaluate
All or nothing approach to murder.
- What are the two outcomes for this defence?
- What do you get for murder? Is this fair? Why?
- What is a reform for this? Why would this be fair?
Apart of self-defence evaluations
- Full acquittal or full sentence.
- Murder nets you a mandatory life sentence, not fair as mitigating factors can lead to force.
- Make it a partial defence, fair as everybody acts differently and gives a more reasonable punishment for murder.
Evaluate
Excessive Force
- How vague is excessive? Leads to jury interpretating it as? Leads to?
- Why can’t jury understand D’s mindset? Hindsight vs on the spot?
- How many jurors? What does this leads to? Why?
Apart of self-defence evaluations
- Vague phrase, interpretated openly by Jury, which is unjust.
- Jury weren’t there at time, they had hindsight, but D didn’t, D under pressure whilst Jury can’t understand the feeling.
- 12 different people, uncertain deciscions for D, as they all have their own biases.
Evaluate
Discriminates Against Women.
- How are men and women different in self defence?
- What is a slow-burn? What does this lead D to do? (Ahluwalia) What does medical evidence show?
- How do sexes differ emotionally? How to reform?
Apart of self-defence evaluations
- Men and women generally have different ideas of reasonable.
- Domestic abuse, where builds up D’s desperation to the point they use excessive force to escape abuse (Ahluwalia), medical evidence shows women are more prone to this.
- Women are more vulnerbale, men in same situations will use violence easily, women tend to not, reform is to have a reasonable man and reasonable woman test.
