1B.6.1 Self-defence

Question 1

What is self-defence?

Answer 1

The need to defend oneself and action taken to defend another.

Self-defence is a complete defence to violent crimes. If successful, the defendant will be found not guilty.

Question 2

What act is the law on self-defence governed under?

Answer 2

The defence is now set out in both common law and statute - s76 Criminal Justice and Immigration Act 2008.

Question 3

Reasons for using self-defence

Answer 3

1) Protecting self
2) Protecting another
3) Protecting property
4) Prevention of crime
5) Apprehension of an offender at large

Question 4

What are the two questions asked to determine whether self-defence is reasonable in the circumstances?

Answer 4

1) Was the use of force necessary?
2) If so, was the use of force proportionate?

Question 5

‘Was the use of force necessary?’

Answer 5

This is a subjective test – whether the defendant genuinely believed the force was necessary.

Question 6

[Necessary force]

Can D use self-defence if they were mistaken on the facts?

Answer 6

If the defendant was mistaken on the facts they can still use self-defence - as seen by the case of Gladstone

So long as the defendant honestly believed something (but is wrong), the defendant can still use self-defence.

Question 7

Gladstone (1983)

Answer 7

The defendant was on a bus when he thought he saw a man assaulting a youth in the street. In fact, the man was trying to arrest the youth for mugging an old lady. The defendant got off the bus and asked what was happening. The man said that he was a police officer arresting the youth, but could not show his police ID card. There was then a struggle in which the man was injured. D found not guilty.

Held: The defendant can use the defence of self-defence even if mistaken on the facts.

Question 8

The effect of mental conditions on self defence

Answer 8

The defendant’s genuine belief can include delusions resulting from a psychiatric condition or another condition such as PTSD.

O’Grady: Self-defence cannot be used if the defendant is intoxicated.

Martin: Self-defence cannot be used if the defendant has a mental illness.

Question 9

[Necessary force]

Retreat

Answer 9

There is no duty for the defendant to retreat, but if there is the opportunity to retreat and the D didn’t, the question will be put to the jury.
- Evaluation point: this doesn’t take into account fear.

s76 CJIA 2008 makes it clear that a person is not under a duty to retreat, but the possibility that the person could have retreated should be considered as a relevant factor in deciding whether the degree of force was necessary.

Case: Bird

Question 10

R v Bird (1986)

Answer 10

The defendant had the opportunity to retreat, but didn’t.

The jury held they could not use self-defence.

Question 11

[Necessary force]

Pre-emptive strike

Answer 11

The defendant does not have to wait for someone to strike first, circumstances might justify a pre-emptive strike.

It is not necessary for there to be an attack in progress. It is only sufficient if D apprehends an attack.

Case: Beckford

Question 12

Beckford (1988)

Answer 12

A police officer killed an armed man who threatened others. Held: force was necessary. The pre-emptive strike was allowed.

Question 13

Can self-defence be used if the defendant is the aggressor?

Answer 13

Even if the defendant is the initial aggressor, they may use force if the victim’s response is wholly disproportionate and seriously threatens the defendant. But this will only be a defence if it was not the defendant’s aim all along to give themselves an excuse to use much more serious violence.

Case: Rashford

Question 14

R v Rashford (2005)

Answer 14

The defendant sought out the victim, intending to attack him in revenge for an earlier dispute, but the victim and his friends responded out of proportion to the defendant’s aggression. The defence was successful.

The court held that a defendant will only lose the defence by being the aggressor throughout the situation. Whether a defendant can rely on self-defence depends on whether they feared that they were in immediate danger and if the violence used was no more than was necessary to protect themselves from serious injury or death.

Question 15

Elements of necessary force

Answer 15

• The effect of mental conditions on self defence
• Retreat
• Pre-emptive strike
• If the defendant is the aggressor

Question 16

Proportionate force

Answer 16

Whether the force is proportionate depends on the facts of the case (or if the D was mistaken, what the defendant genuinely thought the facts were).

For example:
- X is going to punch Y, so Y punches them first. – This is proportionate
- X is going to punch Y, so Y stabs X 150 times first – This is NOT proportionate.

Question 17

Cases on reasonable force

Answer 17

• Owino: Held: Reasonable force is subjective. It is up to the jury to decide whether the defendant used reasonable force.
• Palmer: Stress or pressure of the situation can distort the defendant’s perception of reasonable force.

Question 18

Proportionate force can develop into disproportionate force

Answer 18

Initially proportionate force may develop into disproportionate force, for example, if the defendant does not stop after the danger has been removed or passed.

The defence is lost entirely when the force used is disproportionate (excessive) – as shown in the case of R v Martin (2002).

Question 19

Martin (2002)

Answer 19

Two burglars broke into the defendant’s isolated farmhouse. He fired several shops at them; one of the intruders died and the other suffered serious injuries. The defendant claimed he had shot in self-defence but the evidence showed that they were leaving when he shot them, so the defence was not effective.

Question 20

Householder cases

Answer 20

s76 of the CJIA 2008 states that in a ‘householder case’, a householder can use disproportionate force to protect themselves and others in the house – but not grossly disproportionate force.

Question 21

Criteria to be a householder case

Answer 21

• The force must be used by the defendant while in or party in a building that is a dwelling
• The defendant must not be a trespasser
• The defendant must have believed that the victim was a trespasser

Question 22

Tests to consider in householder cases

Answer 22

1) Was the degree of force the defendant used grossly disproportionate in the circumstances? If yes – they cannot use the defence.

2) If no – was the degree of force the D used reasonable in the circumstances they believed them to be. If it was reasonable, they have a defence. If it was unreasonable, they do not.

This was seen in the case of R v Ray (2017).

Question 23

R v Ray (2017)

Answer 23

D and the victim’s former partner were in a relationship and spending time in the former shared home. In the course of a fight, and fearing that the victim would use a knife against him, the defendant fatally stabbed the victim.

The defence failed.

Question 24

Law Commission reform of self-defence

Answer 24

Law Commission suggested that self-defence should be a partial defence.