Unit 2 - Self Defence Flashcards
(16 cards)
What section and what act contains the law for self defence?
S 3(1) of Criminal Law Act 1967 and consolidated in Criminal Justice and Immigration Act 2008
Where else is the common law version of self defense held?
In Beckford v R
What is the first and second question asked when assessing self defence?
Did D believe it was necessary to use force (subjective)?
Was the degree of force used reasonable in the circumstances (objective)?
When may a defendant not use self defence?
Revenge or retaliation
If a defendant acts in self defence due to a mistaken belief are they liable?
The use of force is necessary and they can rely on self defence, provided their belief was honestly held. It is the case regardless if it was a reasonable mistake or not. Reasonable force is judged using the facts that they honestly believed there to be.
However if the defendants mistake is unreasonable, it may be used to show that it was not honestly held.
Where is the principle of mistaken belief seen in case law and statute?
R v Williams 1984
S 76(4) of the CJIA
Is psychological paranoia admissible in mistaken belief?
No - R v Martin case is the authority.
Seems to contradict with Shaw (Norman) v r where it was argued that attributes like being a frail woman should be taken into account when determining reasonableness.
What did the cases of R v Hatton and R v OGrady show - intoxication?
A mistaken belief is no defence if mistake is based on voluntary intoxication. Largely due to public policy.
To what crimes can self defence be applied?
To all crimes including protecting property and assault.
What is the general rule for reasonableness
The greater the danger to the d, the more force they may use to repel attack. Up to the jury. It is objective. But also depends on the facts as they believed them to be.
How is a householder case different!?
Due to 5A of the 2008 act; it is possible for force to be used that is both reasonable and disproportionate providing it is not grossly disproportionate.
In householder cases, it is not a question of reasonableness but proportionality.
Is there a duty to retreat?
No, but it is a factor taken into account by jury.
Where is a heat of the moment consideration enshrined in statute?
A 76(7) of CJIA 2008.
The jury should take into account that they would have had very little time to decide.
Are pre-emptive strikes allowed?
Beckford v R - yes but only if the danger apprehended must be specific or imminent.
Who has the legal and evidential burden?
The defendant has an evidential burden to discharge. Then the prosecution must disprove it beyond all reasonable doubt.
