Self Defence, Defence of Others, Homeowners Defence Flashcards
(17 cards)
test, authority
Common Law Defence of Self Defence
TEST: Collins [2016]
- 1) whether the action was subjectively thought necessary by the defendant; and,
- 2) what the circumstances were subjectively believed to be by the defendant; and,
- 3) whether the action was objectively reasonable, judged based on those circumstances as the defendant subjectively believed them to be.
Statutory Self Defence
s 3 Criminal Law Act 1967
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
(2) Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.
WHEN TO USE:
- statutory defence does
- statutory defence is s3 may apply more widely than defence of self, others, and property - it also applies to prevention of presumably any crime.
WHEN NOT TO USE:
- when person being defended against is not committing a crime (eg against a child under 10 who legally cannot commit crime)
‘Believed Necessary to Use Force’
AUTHORITY:
Gladstone Williams (1984)
- D must be judged against mistaken facts as he believes them.
- if judged against those facts the P fails to estabilsh guilt, then D entitled to be acquitted.
‘The Use of Force’
Blake [1992]
- S 3 CLA 1976 is only available to crimes committed by use of force. (writing on pillar was held insufficient as force)
Force used must be ‘Reasonable’
Martin (Anthony) [2001]
- can take into account physical characteristics of D, but can not take into acount D’s psychiatric condition (except in exceptional circumstances which basically never arise)
Martin led to complex legislation - specifically;
S76 Criminal Justice and Immigration Act 2008
S 76 (1), (2) CJIA 2008
- (1) This section applies where in proceedings for an offence—
(a) an** issue arises** as to whether a person charged with the offence (“D”) is entitled to rely on a defence within subsection (2), and
(b) the question arises whether the** degree of force** used by D against a person (“V”) was **reasonable in the circumstances. ** - (2) The defences are—
(a) the common law defence of self-defence;
(aa) the common law defence of defence of property; and
(b) the defences provided by section **3(1) **of the Criminal Law Act 1967… (defence for prevention of crime ie defence of others)
S76(3) CJIA 2008
- (3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be, and subsections (4) to (8) also apply in connection with deciding that question.
s76(4) CJIA 2008
- (4) If D claims to have held a particular belief as regards the existence of any circumstances—
(a) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
(b) if it is determined that D did genuinely hold it, D is** entitled to rely** on it for the purposes of subsection (3), whether or not—
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made. - (more unreasonable your mistake the less likely it is you actually did hold that belief)
s 76(5) CJIA 2008
negates S(4) ‘as D mistakenly believed’ IF -
(5) But subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced.
(5A) In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.
S76(6) CJIA 2008
- (6) In a case other than a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.
- (so for householder cases grossly disproportionate, but otherwise just disproportionate.)
- (6A) In deciding the question mentioned in subsection (3) (whether force was reasonable is decided in reference to facts as D believed), the possiblity of retreat is a factor (if relevant) but not a duty to retreat.
S76(7) CJIA 2008
(7) In deciding the question mentioned in subsection (3) the following considerations are to be taken into account (so far as relevant in the circumstances of the case)—
- (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and
(b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only **reasonable action was taken **by that person for that purpose.
S76(8) CJIA 2008
(8) Subsections (6A) and (7) are not to be read as preventing other matters from being taken into account where they are relevant to deciding the question mentioned in subsection (3).
TEST FOR HOUSEHOLDER CASES:
- (8A) For the purposes of this section “a householder case” is a case where—
(a) the defence concerned is the common law defence of self-defence, - (ie doesn’t apply to s 3, or defence of property)
(b) the force concerned is force used by D while in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both),
(c) D is not a trespasser at the time the force is used, and
(d) at that time D believed V to be in, or entering, the building or part as a trespasser.
HOUSEHOLDER CASES
S76(8) CJIA 2008
- Cheesman [2019]
Defence is only concerned with D’s belief that someone was a tresspasser (not whether in fact they were).
Ray [2017] TEST for determining Householder cases:
- 1st to determine if force was reasonable you must determine whether grossly disproportionate. grossly proportionate = unreasonable
- 2nd if not grossly disproportionate, then jury must consider whether degree of force was reasonable in context to all circumstances as D believed them.
- however, in householder case disproportionate force will still be reasonable.
Self Defence, Mistake and Intoxication
Taj [2018]
- the words “attributable to intoxication” in s. 76(5) are broad enough to encompass both (a) mistaken state of mind as a result of being drunk or intoxicated at the time and (b) a mistaken state of mind immediately and proximately consequent upon earlier drink or drug-taking,
Jaggard v Dickinson (1981)
- intoxication may be defence for criminal damage under s5(2)b, s5(3) Criminal Damage Act 1971 but not otherwise
Mistake and Insane and non-insane delusions
INSANE DELUSION:
Oye [2013]:
- An insane person cannot set the standards of reasonableness as to the degree of force used by reference to his own insanity.
- in self-defence cases the psychiatric characteristics of an accused cannot be brought into account on the issue of whether the degree of force used was reasonable in the circumstances.
- this does not proclude insanity on reliance of what the situation was, but only in relaiance on the reasonability of force used.
- in the case it was held that plea of insanity with special verdict was more appropriate but this does not mean insanity and self defence are icompatible arguments.
NON INSANE DELUSIONS: (?)
Taj [2008]
- D was intoxicated and suffered from bipolar (not amounting to insanity)
On whom may force be used
Hichens [2011]
- held that force may be applied to innocent 3rd party in relation only to s.3 Criminal Law Act 1967 (prevention of crime)
examples given:
- 1. a police constable bundles a passerby out of the way to get at a man he believes about to shoot with a firearm or detonate an explosive device;
- 2. Y seeks to give Z car keys with Z about to drive. X, believing Z to be unfit to drive through drink, knocks the keys out of Y’s hands and retains them.
consider the implications in relation to duress of threats, can hichens be used to side step limitations on duress?
By whom may fore be used?
**Keane [2010] **
- self defence may arise in case of original aggressor but only when violence of V was so out of proportion that in effect the roles reversed.
- this does not apply where D started attack and V finished attack proportionately and successfully.
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