Self defence Evaluation Flashcards
(6 cards)
Self defence definition
Self defence is a complete defence including murder as the defendant’s use of force is justified in the circumstances. If proven the defendant will be found not guilty this covered by common law and statute
paragraph 1-deciding how force is disportionate is reasonable
One criticism against the current laws on self defence is deciding how much force is reasonable on self defence S76 of criminal justice and immigration act 2008 puts the decision in r v Williams gladstone as it stated=s in s.76(3) of the criminal justice and immigration act 2008 puts the decision in R v Williams gladstone it stated in s.76(3) the question whether the degree of force used by the defendant was reasonable in the circumstances is to be decided by the reference to the circumstances as the defendant believed them to be. This is an issue as it is difficult to establish what is reasonable and what is actually means as how much force is considered reasonable in the circumstance this can be seen in the act as in section s76(5a) also states that a person acting a legitimate purpose may not be able to weigh in nicety. The exact measure of any necessary action.However it can be decided by a case by case basis this is because the jury decides whether the amount of force is necessary in the circumstances
paragraph 2- avoiding a vigilante approach
Another criticim on the current law on self defence is avoiding a vigilante approach and people taking the law into their own hands. the courts have shown that they have prepared to allow pre-emptive strikes-even if the preparation involves unlawful act additionally they are quite lenient also shows that the defendant to withdraw even if they are aggressor, they can use the defence if the force used against them was dipropionate Law in its current form it is not clear on how far you can prepare for in advance. This can be seen with the case of R V bird where the defendant had hit her ex-boyfriend but argued she acted in self defence as she hit him before he hit her withdrawing or showing an unwillingness to fights evidence that the defendant is acting reasonably and in good faith and there is no requirement to show an unwillingness to fight however As seen the case of R v Hussain-shows that the courts won’t accept the defence if the force used by the defendant is excessive or and shows revenge
paragraph 3 - Householder rights
Another criticism on the current law on self defence is householders rights are difficult to balance this is because This is morally justifiable that householders should be able to protect themselves, their property, their family but is a householder morally justified in which any amount of force,this is seen in the case of R v Martin-s769 5a) of the CJA says that force is not reasonable if it it is grossly dipropionate. This gives wider defence to householder as it implies disportionate of force, however, Martin would not be able to use the defence as shooting a teenage in the back would be seen as grossly disportionate ,jury would decide the force is disportionate
paragraph 4- pre-emptive strikes
Another criticism is Pre emptive strikes must be proportionate. this is set out in section 76(6a) where its says a person acting for a legitmate purpose may not be able to weigh in nicety. The exact measure of any necessary action this is because it is harder to determined what can be classed as proportionate as the level of force need may vary depending in the circumstances, this can be seen in the case of ag’s reference n0.2 where it was decided that self defence used to cover preparing for an cat ask the defence could used as long as the possession , however it allow the jury to establish by a case by case basis what can be considered what is classified as proportionate
Conclusion
It is certainly evident that there needs to be a reform in the law on self -defence to allow for a clear outline.
