1B - Evaluation Of Self Defence Flashcards
Main criticisms
- Argument that the law favours the defendant
- Relevance of defendants characteristics
- Reasonable force
Law favours the defendant: D mistaken as to circumstances
Recognises that sometimes a quick reaction is needed or that people may not be fully rational when afraid
Law favours the defendant: No duty to retreat
- Bird: unnecessary to show an unwillingness to fight. There are circumstances where D may act without first retreating
Beckford: circumstances may justify a pre-emptive strike
Law favours the defendant: D may be original aggressor
Keane and McGrath: defence can be pleaded where D is the original aggressor, V’s response is disproportionate and D retaliates
D’s characteristics
Should D’s characteristics be taken into account when considering whether D thought it was necessary to defend himself?
D’s characteristics: Martin
court held that psychiatric evidence that D had a condition that meant that he perceived much greater danger than the average person was not relevant to the question of whether D had used reasonable force
Law favours the defendant: D mistaken as to circumstances: Gladstone Williams
allows defence for those who defend themselves whilst being mistaken to the circumstances, providing mistaken is honest
Law favours the defendant: D mistaken as to circumstances: s.76 Criminal Justice and Immigration Act 2008
provided the mistake was not made due to intoxication, D can rely on his mistake
D’s characteristics: Cairns
when deciding whether D had used reasonable force in self-defence it was not appropriate to take into account whether D was suffering from a psychiatric condition which may have caused him to have a delusion that he was about to be attacked
D’s characteristics: Criminal Justice and Immigration Act 2008
Difficult to know whether these decisions are still effective following Criminal Justice and Immigration Act 2008 that makes it clear that question of whether the degree of force is reasonable is decided by reference to the circumstances as D believed them to be
Reasonable force: Palmer
force does not have to be exactly proportionate and “a person defending himself cannot weigh to a nicety the exact measure f his necessary defensive action”
But many high profile cases where D has been unsuccessful because the force used was excessive
Reasonable force: Martin
farmer who shot dead a burglar and was found guilty of murder led to high profile media campaign to clarify the law
Reasonable force: Prior to partial defence of loss of control
key criticism on self-defence cases was that if the defence fails in a murder case because it is an all-or-nothing defence, D faces a mandatory life sentence
Attempts to clarify the law: Coroners and Justice Act 2009
alleviates the problem of self-defence being an all-or-nothing defence by providing a partial defence of loss of control that can be pleaded in cases where D may use excessive force because of fear of serious violence – reduces conviction to voluntary manslaughter
Attempts to clarify the law: s.76 Criminal Justice and Immigration 2008
does not aim to change the law but it puts the rules of law established through case law into a statutory format
