1B - Self Defence

Question 1

Self defence and the prevention of crime is an all or nothing defence

Answer 1

If successful, the D is acquitted

Question 2

Self defence and defence of another are found in…

Answer 2

common law

Question 3

Prevention of crime is found in…

Answer 3

s.3(1) Criminal Law Act 1967 which states ‘a person may use force as is reasonable in the circumstances in the prevention of a crime’

Question 4

Both defences are placed on a statutory footing in…

Answer 4

Criminal Justice and Immigration Act 2008

Question 5

Criminal Justice and Immigration Act 2008 s.76(1)

Answer 5

‘a person may use force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or of persons unlawfully at large’
Act confirmed much of the existing case law

Question 6

Key elements of the defence

Answer 6

• use of force must be necessary

- the force used must be reasonable

Question 7

Use of force must be necessary

Answer 7

For force to be justified, it must have been necessary. D is judged in the circumstances as he/she honestly believed them to be. To decide whether the force was necessary, jury will consider all the surrounding circumstances

Question 8

Use of force must be necessary: Pre-emptive strikes

Answer 8

• some circumstances where you may fear an attack is imminent and be placed in a position where you are required to strike an assailant BEFORE they attack or strike
• D doesn’t need to wait to be attacked before defending himself or herself
  Beckford Cousins

Question 9

Use of force must be necessary: Preparing for an attack

Answer 9

If the D believes he/she is at risk of an imminent attack on his person or property, he or she may be able to prepare in order to defend himself or herself
AG Ref No 2 1983
All danger/threat from the original attack is over
Clegg Hussain

Question 10

Use of force must be necessary: No duty to retreat

Answer 10

s.76(6A)
Courts have decided that there is no duty on the D to retreat when faced with an attack and it is not necessary to demonstrate a reluctance to fight
Bird

Question 11

Use of force must be necessary: Mistake as to the need for self defence/the prevention of crime

Answer 11

‘circumstances as D believed them to be’ = allows for genuine but not drunken mistake
If D makes a mistake and thinks that self defence is necessary, he/she will be judged on the facts as he/she honestly believed them to be (s.76(3)). Therefore, the defence could still be available. This is still the case if the mistake made was unreasonable as noted in s.76(4) which confirms Gladstone Williams

Question 12

Use of force must be necessary: Mistake as to the need for self defence/the prevention of crime - voluntary intoxicated

Answer 12

If D was voluntarily intoxicated when making the mistake as to the need for self defence, the defence will not be available (s.76(5))
A drunken mistake may be honest, but it is unlikely to be reasonable

Question 13

Force used must be reasonable

Answer 13

Jury must take into account things like degree of force, threat of harm, urgency of the situation, element of surprise and any other circumstances of the D

Question 14

Force used must be reasonable: s.76 Criminal Justice and Immigration Act 2008

Answer 14

• reasonable force
• doesn’t need to ‘weigh to a nicety’ (in the heat of the moment you may not be able to think straight as to how much force you need to use)

Question 15

Force used must be reasonable: s.43 Crime and Courts Act 2013

Answer 15

Amended s.76 Criminal Justice and Immigration Act 2008

Allowed for a wider definition for householders - s.76(A) reasonable unless ‘grossly disproportionate’

Question 16

Force used must be reasonable: Test for proving whether force was reasonable

Answer 16

Owino

Question 17

Force used must be reasonable: s.76(7)

Answer 17

Recognises a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action. If someone has done what they ‘honestly and instinctively thought was necessary, this is strong evidence of reasonableness

Question 18

Force used must be reasonable: Excessive force

Answer 18

If jury believs that the force was excessive in the circumstances, then the defence fails on the second element and D is guilty
Criticised as the D who rightly thinks that the force is needed but makes a mistake as to the degree of force, will not be able to rely on the defence as the forces used must be ‘objectively reasonable’
Will also not be available if all danger from the original attack is over - any use of force in such circumstances would be deemed unnecessary and likely to be excessive
Clegg/Martin (Anthony)/Hussain

Question 19

Householder cases

Answer 19

Now have a wider defence where an intruder enters their property
s.43 Crime and Courts act 2013 amended s.76 Criminal Justice and Immigration Act 2008 so that s.76(5A) now states that ‘the degree of force will no tbe regarded as reasonable only where it is grossly disproportionate’
Does not give householders the right to use any degree of force, it is a matter for the jury to decide
Collins v Sec of State for Justice