Self-defence/defence of another

Question 1

in relation to what offences can this be relied upon?

Answer 1

any offence

Question 2

give an overview of self-defence/defence of another defence

Answer 2

D can use reasonable force to:
o Defend self/others/property
o Prevent crime
o Assist lawful arrest

Question 3

what are the key questions which to determine whether the force was reasonable?

Answer 3

1. Was it necessary to use force (subjective)?
2. Was the amount of force reasonable (objective)?

Question 4

explain the subjective element (inc. mistake)

Answer 4

D must have believed it was necessary to use the force to defend themselves, prevent crime etc

Defence available even if D is mistaken that force is necessary - but must D must have honestly believed force was necessary

Question 5

explain the objective element (inc. mistake)

Answer 5

D is judged on facts as they believe them

i.e. the amount of force will be unreasonable if it was disproportionate in circumstances as D believed them. If D’s mistake was unreasonable, the jury may find the belief was not reasonably held.

Question 6

what factors are relevant when the court are considering whether the amount of force was unreasonable? (5)

Answer 6

 D’s physical characteristics (but not mental state)
 D is not required to retreat but may affect reasonableness
 D does not need to have been attacked before they use force if they honestly believed they were going to be attacked, but the danger must be sufficiently specific/imminent to justify the force
 Act is in heat of the moment  if honestly acting in self-defence, court looks at what they did instinctively rather than with the benefit of hindsight

Question 7

when can this defence not be relied upon?

Answer 7

• cases of revenge / retaliation
• D is voluntarily intoxicated

Question 8

can D rely on this defence in involuntary intoxication cases?

Answer 8

yes, so long as the requirements for self-defence/defence of another are met

Question 9

explain the legal and evidential burden

Answer 9

D must raise defence, P must disprove BARD otherwise D will be acquitted

Question 10

who is a householder for the purposes of this defence in household cases (inc. the setting in which the event must take place)?

Answer 10

D need not be the homeowner, but must not be a trespasser

Force must take place in (or partly in):
o Dwelling
o Forces accommodation
o Vehicle/vessel which is a dwelling

Question 11

give some examples of areas which are not ‘households’

Answer 11

o house driveway
o at work
o trespassing in neighbours apartment

Question 12

explain this defence in the context of households

Answer 12

in ordinary cases, a ‘reasonable’ amount of force is permissible

in householder cases, a greater level of force is reasonable i.e. proportionate and disproportionate force. Only grossly disproportionate force is not allowed

whether the force is disproportionate is a question for the judge