Self-Defence

Question 1

Introduce self-defence.

Answer 1

• Necessity defence
• Full defence
• Defence to any crime in which force is a required element.
• Covers actions to defend oneself, defend another person, defend one’s property + prevent crime.
• Defence set out in both common law + statute.

Question 2

Explain the first point of self-defence, was the force used necessary?

Answer 2

• Subjective test; D will be judged according to the facts as they genuinely believed them to be.
• R v Gladstone Williams: if D genuinely made a mistake, then they are to be judged on the facts as they believed them to be- even if the mistake is unreasonable.
• S.76 Criminal Justice + Immigration Act 2008: puts decision in Gladstone Williams in statutory form.
• R v Taj: if D made mistake as they’d gotten voluntarily intoxicated, can’t rely on mistaken belief.
• R v Seun Oye: D’s genuine belief can include delusions resulting from a psychiatric condition or other condition, but where D has delusions, their mental health is not to be taken into account.
• R v Bird: pre-emptive strikes are allowed, D need not show reluctance to fight in order to claim defence.
• R v Rashford: even if D’s initial aggressor, may use force if V’s response was wholly disproportionate.

Question 3

Explain the second point of self-defence, was the force used reasonable?

Answer 3

• R v Seun Oye, R v Press + Thompson: Objective test
• S.76 (6) Criminal Justice + Immigration Act (2008): force mustn’t be disproportionate in circumstances D believes to exist.
• S.76 (7) (a): Jury can take into account a person acting for a legitimate purpose may not be able to weigh to a nicety that exact measure of necessary action (D doesn’t have to get exact amount of force used right)
• S.76 (7) (b): evidence of D only doing what they thought instinctively + honestly necessary is strong evidence that reasonable action was taken for that person
• R v Harvey (2009): Jury should take into account circumstances + danger that D believes to exist in assessing whether his use of forces was proportionate
• R v Clegg: held degree of permissible force is the same whether D’s using it to protect himself, others or to prevent crime. Initially proportionate force may develop into disproportionate.

Question 4

Explain the third point of self-defence, householder case.

Answer 4

• To be householder case, following needs to be shown: force must be used by D while in/partly in building that’s a dwelling, D mustn’t be a trespasser, D must’ve believed V to be a trespasser
• Magson (2022): D must genuinely believe that V is a trespasser
• Assuming D genuinely believed force was necessary, tests to be considered: 1) Was degree of force D used grossly disproportionate as he/she believed them to be, 2) was degree of force D used nevertheless reasonable in circumstances they believed to be. Rules considered in: R v Ray (2017)