self defence Flashcards
(18 cards)
where is self defence defined?
S3(1) criminal law act act 1967
what is the definition under the criminal law act?
defence for a person who uses force reasonable in the circumstances to prevent crime or to lawfully arrest offenders or suspects or those unlawfully at large
what does S76 of the criminal justice and immigration act 2008 confirm?
rules to be applied when ‘the question arises whether the degree of force used by the D against a person was responsible in the circumstances (s76(1)(b)
what are the 2 main points to consider for self defence?
- was the force necessary?
- what the force reasonable/proportionate in the circumstances?
what is the rule on necessary force and case?
need to look at circumstances and whether D genuinely believed in the situation even if mistaken
R v Williams (Gladstone)
does the D have a duty to retreat and case?
no the D doesn’t have to wait for the attack to start
R v Bird
where is the principle of retreat set out?
S76(6A) Criminal Justice and Immigration Act 2008
what is the rule on pre-emptive strikes and case?
a person is able to make preparations in self defence to meet the force of the attackers
R v Bird
what is the law if the defendant is the aggressor and case?
general = aggressor cannot rely on self defence
exception = aggressor can use self defence if the V’s response is wholly disproportionate and seriously threatens D
R v Rashford
what is the scope of the defence and case?
usually non fatals against the person but can be murder and property offences
Hussey
what section deal with whether the force was proportionate/
S43
what are the circumstances that the force used by D must be reasonable and proportionate?
- the actual circumstances
- the circumstances D believed
- the time available to D to decide on his actions
- the risk to D and the risk to V
what is the basic rule set out in S76(6) CJaIA 2008 to do with proportionality?
except in householder cases, force which is disproportionate will not be reasonable
what are things to remember when discussing proportionality?
- there is no requirement for equality e.g. fists can be defended with weapons
- proportionate force may become disproportionate if the danger has passed and D doesn’t stop
- defence entirely lost is force is excessive
case for when force is excessive?
R v Clegg - defence is lost
what does s43 of the Crime and Courts Act 2013 allow
for householders to use disproportionate force when defending themselves
this only applies to the defence of a person NOT property and used against trespassers who actually enter the house
what is S76(3) and who does it apply to?
the level of force used must still be reasonable in the circumstances as the householder believed them to be. The disproportionate force must not be grossly disproportionate
applies to everyone INCLUDING householders
case for S76(3)?
R v Ray
