11) Self Defence Flashcards
What does the term self defence cover?
Where a person acts to protect:
* Themselves, someone else, property, a crime or assist in the arrest of an offender
What type of defence is self-defence?
- Common law defence
- Will result in acquittal if successful
- Also statautory defence in Criminal Law Atct 1967 s 3
Where is the statutory defence found?
- Criminal Law Act 1967, s3
- Criminal Justice and Immigration Act 2008, s76
Criminal Justice and Immigration Act 2008, s76
section 76(1)(b)
Applies when “the question arises whether the degree of force used by D againast a person was reasonable in the circumstances” = Second part of the common law test
R (on the application of Denby Collins) v SoSJ
s76 governs the second limb of the defence.
Common Law defence reasons for acting
- Protection of life and limb of yourself or another (R v Gladstone Williams)
- In protection of property R v Hussey
CJIA 2008, s76(2)
- Common law defenceof self defence
- Common law defence of defence of proeprty
- The defence provided by s3(1) of the Criminal Law Act 1967 …use of force in prevention of crime or making arrest
When can self defence be used?
Only to protect yourself or another, or property from imminent attack.
Not to be used to prevent psychological harm. Like must be met with like.
R v Bullerton
R v Bullerton
Not to be used to prevent psychological harm. Like must be met with like.
Criminal Law Act 1967, s3
A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assissting the lawful arrest of offenders or suspected offenders or persons unlawfully at large.
What was the intention of CJIA 2008
Intended to clarify both the common law and statutory defences.
- Re-enacted common law principles in statutory form
- Changed “householder” defences.
*
The Test for whethe defendant may rely on any of the defences.
- Did defendant honeslty believe use of force was necessary = Trigger
- Was the level of force the defendant used in response objectively reasonable in the circumstances? = Response
Who has the evidentiary responsibility?
Up to prosecution to disprove whether the defendant acted in self defence.
R v Clegg
- Self-defence is complete defence
- If slightly excessive force is used = no partial defence
What might happen where defenedant is facing murdercharge, and self-defence fails?
- Possible for jury to convict defendant of the lesser offence of voluntary manslaughter
- On the basis of a loss of control
R v Dawes; Hatter & Bower
R v Dawes; Hatter & Bower
- Self defence fails when on trial for murder
- Possible for jury to convict defendant of the lesser offence of voluntary manslaughter
- On the basis of a **loss of control*
The trigger for self defence
Did defendant honestly believe that the use of force was necessary?
Subjectively judged - eg if doesnt matter if mistaken
R v Gladstone Williams
R v Gladstone Williams
Principle
Did defendant honestly believe that the use of force was necessary?
Subjectively judged - eg if doesnt matter if mistaken, if had honest belief
R v Gladstone Williams
Case
Saw a woman being robbed, and attempted to stop robber.
Williams thought robber wsa being attacked, and attached victim.
Charged under OAPA s47
Self defence was successful, not necessary to believe that was beung lawfully attacked
Cases relating to mistake induced by voluntary intoxication?
R v O’Connor
R v Hatton
R v O’Connor
Mistaken belief is due to the voluntary intoxication of the defendant, then the defendant will not be able to rely on their mistake.
* Same for a specific or basic intent crime
* Approach confirmed in s76(5) CIJJA 2008
R v Hatton
- Drunkenly murdered victim with sledgehammer
- Claimed that it was because of a SAS officer attacking him wiht a sword.
- Applied R v O’Connor and R v O’Grady
- Voluntary intoxication could not be relied upon
Is there a duty to retreat?
- Force must have been reasonable
- But, there is no duty to retreat
- Although if had an opportunity to retreat, may be considered as a relevant factor.
Facts: R v Bird
R v Bird
- No rule binding to run away
- Should demonstrate that he did not want to fight, was prepared to temporise and disengage.
- Not necessary, but best evidence to act reasonable and in good faith
Anticipatory self defence
A defendant may make the first blow and still rely on the defence,
AG’s Reference (No2 of 1983)
- Accused would be entitled to defence of self-defence if….
- “object was to protect himself / family / property against imminent attack
- Using means which he believed were no more than reasonably necessary
Beckford v R
A man about to be attacked does not have to wait for the first blow…. circumstances may justify a pre-emptive shot
Devlin v Armstrong
- Plea of self defence may be used for force used to…
- Ward off or prevent an attack
- Which he honestly anticipated.
- Anticipated attack must be imminent
Can self defence be used by an antagonist?
- Yes
- See R v Forrester - being a trespasser did not entitle excessive force.
R v Forrester
- Whether or not F was a trespasser did not entitle W to use excessive force to remove him.
- F would be entitled to rely on self-defence if W used excessive force in attemoting to remove him
R v Rashford
- Self defence is not automatically precluded in a situation where the defendant was the intial aggressor, and the victim retaliated.
- If person they originally attacked goes over the reasonable amount of force, in an offensive.
R v Keane and McGrath
Self defence could arise for the original aggressor, but only where the violence offered by the original aggressor was so out of proportion that the roles were effectively reversed
R v Hichens
D had moved in with a friend, but Y’s ex-boyfriend objected to the arrangement.
D slapped female flat mate when she wanted to allow Y to enter.
* D claimed that used force against an innocent third party to prevent a crime
* Not allowed in this case
* Although self defene is available to those who use force against a third party in limited circumstances.
When can force be used against an innocent third party and give rise to self defence….
Very rarely, but might include….
* Police officer bundling a passerby out of the way to get at a person about to shoot a firearm / explosive device.
* Person seeking to give car keys to another when they are drunk and unfit to drive.
R v Hichens
Which case confiremd that force can be used against an innocent thrid party and amount to self defence?
- Hichens, very particular circumstances
The response
Jurry must consider the level of force used in response to the threat.
Criminal Justice and Immigration Act 2008
* What is reasonable depends on the circumstances
* Level of force differs depending on whether a householder or none house holder case.
What is considere re the level of force used?
Depends on the circumstances
* Householder vs nonhouseholder cases
Criminal Justice and Immigration Act 2008
Whar are the questions to act re: Self Defence?
Trigger Did the Defendant honestly believe the use of force was necessary?
Response Was the level of force used objectively resonable in the circumstances as Defendant believe =d them to be?
Provisions of CJIA 2008, s 76
- Degree of force used by reasonable, in the circumstnces is to be decided by reference to the circumstances as D believed them to be.
- D Belief: - reasonableness is relevant - but entitled to rely whether or not it was mistaken, or the mistake was a reasonable one to have made
- No mistake allowed for intoxication
*
Non householder cases - the degree of force
Degree of force used by D is not to be regarded as having been reasonable in the cirucmstances as D believed them, if it was disproportionate to those circumstances
What can be taken into account when weighing the reasonableness of force in nonhouseholder cases?
Provisions of CJIA 2008, s 76
- A person acting for a legitimate purpose may not be ble to weigh exactly the measure of necessary action..
- Evidence of honest / instinctive action for a legitmate prupose = strong evidence that the only reasonable action was taken by that person for that purpose.
- Other matters may be taken into account where relevant
Provisions of CJIA 2008, s 76
Wht is the test in Non Householder cases
- Objective Test
- Same as common law
R v Owino
R v Owino
- The essential elements of self defence are clear
- Jury must decide what D honestly believed as to the circumstances
- Judged by honestly belief, and whhether force used was reasonable in the circumstances as believed
R v Harvey
Defendant must be judged not just on the circumstances as they believed them to be, but also on the danger as they believed it to be
R v Press and Thompson
A soldier who had just completed a tour of Afghanistan was allowed to rely on psychiatric evidence that he suffered from PTSD to substantiate his mistaken beliefs.
When considerin the force used what must the jury do?
Decide whether the force used was objectively reasonable, given the facts as the defendant subjectively believed them to be.
Jury must bear in mind that the defendant may have acted “in the heat of the moment”
Provisions of CJIA 2008, s 76 (3), (4) and (6)
Palmer v R
- If attacked
- Will be recognised
- Person defending cannot weigh exact measure of necessary defensive action.
- Moment of anguish - honest and instinctive action = reasonable evidence
A-G’s Ref for N Ireland
Jury must remember
* balancing of risk against harm
* by the reasonable man
* Not undertaken in the calm analytical atmosphere
* Benefit of hindsight
* Decisions made in the seconds and under the stresses exposed.
s 76(7)(a)
- That a person acting for a legitimate purpose may not be able to weight the exact measure of an action (derived from Palmer v R
- In the circumstances, one did not use jewellers to measure reasonable force Reed v Wastie
s 76(7)(b)
Evidence of a person having only done what that person honestly and instinctively thought was necessary for a legitimate purpose = strong evidence that only reasonable action was taken
Palmer v R
Can self-defence be relied on if a mistake was induced by voluntary intoxication?
No
R v O’Connor
s76(5)
What accurately describes the question to be asked when judging whether the response was reasonable for the purposes of self-defence?
Was the level of force objectively reasonable in the circumstances as D subjectively believed them to be?
s 76(3) Criminal Justice and Immigration Act 2008
The Test for Self defence in House holder cases
Trigger D honestly believed use of force was necessary
Response Leve of force used as objectively reasonably in the circumstances as D believed them to be.
Difference between householder and non householder cases
In householder cases, the force will not be reasonable if it was grossly disproportionate.
= higher threshold
Criminal Justice and Immigration Act 2008
Criminal Justice and Immigration Act 2008
s76(5A)
Degree of force used by D is not reasonable if grossly disproportionate
R(on the application of Denby Collins) v SoS for Justice
- Considered the test for self-defence to be in accordance with Art 2 ECHR
- Found that does not extend in law the second limb of self-defence, but places emphasis on the requirement to consider all cirucmstances permitting a degree of force to be used as an intruder.
- Summarised meaning and effect of s76(5A)
s76(5A) meaning and effect
R (on the application of Denby Collins
- Degree of force used in any case is reasonable to be considered by reference to the circumstances, as defendant believed them to be.
- Householder is not regarded as acting reasonably if degree of force used was grossly disproportionate
- Force tht went completely over the top = grossly disproprotionate
- Householder may or may not be regarded as having acted reasonably if the degree of force used was disproportionate.
Brian Leveson on the householder cases test
Response = two part question
* Was force **grossly disproportionate ** in the circumstances as the defendant believed?
* If not grosssly disproprotionate, was the level of force reasonable?
Why are householder cases in a different category?
- Allows discretionary are of judgment
- With a different emphasis on non-householder cases
- eg Opportunity to retreat - take into account this less
*
R v Ray (Steven)
- Approved R (on the application of Denby Collins) v SSJ
- Determine on the facts whether degree of force was grossly disproportionate
- If not, should decide whether degree of force was reasonable
The use of disproportionate force whih is not grossly disproportionate may or may not be reasonable - What may be unreasonable in a club, might not be if an intruder in the home
What factors might a jury consider in a householder case?
- Shock of intruder in home
- Time of day
- Presence of other help
- Desire to protect the home and occupants
- Vulnerability of occupants
- Picking up an obkect lawfully at hand in a home
- Conduct of the intruder at the time (or on any other occasions known to the defendant)
Holding a knife in a club vs at home
- In a club more unreasonable than inf intruder came into the house
What is a householder case?
Where the defendant
- Relies on the common law defence of self-defence (ie not protecting property)
- Uses force while in or partly in a building, or part of a building, that is a dwelling (sleeping accommodation) or is forces accommodation (Living Accommodation under Part 3 of Armed Forces Act 2003) or both.
- Is not a trespasser at the time force is uesed, and
- Believed the victim to be in, or entering, the building as a trespasser
Must meet these criteria
What counts as a dwelling or forces accommodation?
- Buillding includes a vehicle or vessel
- Part of a building that is a dwelling includes places of work and internal access routes
- If the deffendant or another person dwells in part of a building
- Another part of the building is a place of work for D or another person
- You can mve between the dwelling and place of work through an internal access routes
Trespasser for the purposes of the act?
The fact that a person derives title from a trespasser, or has permission of the trespasser for the purpose of the subsection.
Does the use of force in householder cases need to be reasonable?
Yes
Confirmed by the High Court in the Denby Collins case and the Court of Appeal in **R v Ray (Steven). **If the force was not grossly disproportionate in the circumstances, the next question is whether the level of force was reasonable._
To be potentially classed as a householder case, which of the following must the defendant rely on?
Protecting themselves or another.
This reflects the Criminal Justice and Immigration Act 2008, s 76(8A)(a).
