C7: Defences

Question 1

What are the four general and complete defences?

Answer 1

Insanity
Self-defence (public and private defence)
Necessity
Duress

Question 2

What is a general and complete defence?

Answer 2

General = can be pleaded to any crime.
Complete = defendant avoids liability altogether.

Question 3

What is a justificatory defence?

Answer 3

Where the defendant is seeking to justify their conduct, e.g. self-defence.

Question 4

What is an excusatory defence?

Answer 4

Where the defendant is arguing that their behaviour should be excused by the fact that they were e.g. acting under duress.

Question 5

Where is the burden of proof once a defence has been brought forward?

Answer 5

The burden of proof with defences is usually on the prosecution. This means that, where the defendant brings forward enough evidence to put a defence before the court (i.e. they discharge their evidential burden), it is then for the prosecution to disprove the defence beyond reasonable doubt.

Question 6

What is the exception to the defendant only giving an evidential burden, but having to prove the elements of a defence to the civil standard of proof (on balance of probabilities)?

Answer 6

For diminished responsibility.

Question 7

What is private defence?

Answer 7

Private defence was a common law defence. It has now been partially codified by s76 Criminal Justice and Immigration Act 2008 (CJIA 2008). It is an umbrella term for two types of defence: self-defence and defence of others.

Question 8

Where in legislation would you find private defence?

Answer 8

s76 Criminal Justice and Immigration Act 2008 (CJIA 2008)

Question 9

What are the elements of the private defence?

Answer 9

The elements of the defence are as follows:

• the defendant’s use or threat of force is necessary in order to defend themself or another, or the defendant mistakenly believes that force is necessary in order to defend themself or another; and
• the defendant’s use or threat of force is reasonable in the actual circumstances, or in the circumstances that they mistakenly believe to exist.

Question 10

Where in legislation would you find public defence?

Answer 10

s3 Criminal Law Act 1967 (CLA 1967).

Question 11

What do private and public defences apply to?

Answer 11

Offences committed by the defendant that involve the use or threat of force (usually against a person).

Question 12

What are the elements of the public defence?

Answer 12

The elements of the defence are as follows:

• the defendant’s use or threat of force is necessary to prevent a crime, or to effect or assist lawful arrest, or the defendant mistakenly believes the use or threat of force is necessary to prevent a crime, or to effect or assist lawful arrest; and
• the defendant’s use or threat of force is reasonable in the actual circumstances, or in the circumstances that they mistakenly believe to exist.

Question 13

What is the difference between public and private defences?

Answer 13

Public: to prevent a crime
Private: to defend themselves or another

Question 14

Of private and public defences, which defence is a common law defence and which is a statutory defence?

Answer 14

Private: Common law defence (although codified in s76 CJIA 2008)
Public: Statutory in s3 CLA 1967.

Question 15

Can both private and public defences apply in the same situation, or must there only be one that applies?

Answer 15

Both can apply, or either.

Question 16

If a nine-year-old child threatens someone with a knife, can a public defence be put forward?

Answer 16

No, because the defendant does not use force to prevent a crime; the child is under the age of criminal responsibility and they therefore cannot commit a crime

Question 17

If the defendant uses force to prevent a crime where they are not attempting to protect themself or another, e.g. where they wrestle the victim who is about to deface a painting in an art gallery, which public/private defence would apply?

Answer 17

A public defence, to prevent a crime.

Question 18

Is the test for establishing whether the defendant believed that their use or threat of force was necessary, subjective or objective?

Answer 18

It is subjective - it depends on what the defendant honestly believes. There needs to be no proof that the belief needs to be reasonable.

Question 19

If the defendant genuinely believed that they had to use force for self-defence, although that was a mistaken belief, can a public/private defence still apply?

Answer 19

Yes, it can. The focus is on whether the defendant honestly believed what the facts were, not what was actually the truth. See s76(4) CJIA 2008: “(4) If D claims to have held a particular belief as regards the existence of any circumstances —

• the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
• if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not —
  — it was mistaken, or
  — (if it was mistaken) the mistake was a reasonable one to have made”.

Question 20

If the defendant honestly believes that the victim is a burglar and honesty believes it is necessary to detain the victim in order to protect his property, has the defendant got a public/private defence?

Answer 20

Yes, they do, because the defendant honesty holds a belief and that provides a defence, however unreasonable this belief may be.

Question 21

Can the honestly-held belief be unreasonable or will it not allow a public/private defence?

Answer 21

It can be unreasonable, as long as it is honestly held.

Question 22

Can a defendant rely on a public or private defence when assaulting a police officer?

Answer 22

Yes, they can, even if the court deems the officer to be acting properly and lawfully, as long as the defendant honestly, but mistakenly, believes that the force is necessary.

Question 23

What kind of force can be used in self-defence of a person or property?

Answer 23

It must be reasonable force - unreasonable force will not provide a defence. See Burns [2010], the defendant invited the victim into his car after she had agreed to give him oral sex for £50. They drove to a quiet place but the defendant changed his mind and asked the victim to leave. She refused. He ejected the victim from his car by pulling her out by the armpits, causing her scratches and grazes. He was convicted of assault occasioning ABH. His defence was that he used lawful force to eject the victim from his property. All the defendant had to do was to drive her back to that spot rather than use unlawful force to eject her. She was not a trespasser.

Question 24

If the defendant is mistaken as to the circumstances as the defendant believed them to be due to dangerous drugs or alcohol, will a private/public defence apply?

Answer 24

No,the defendant cannot rely on the defence where their mistake is due to self-induced intoxication by dangerous drugs or alcohol, even where their mistake is an honest one.

Question 25

If the defendant thought someone was trying to kill them due to drugs or alcohol and he used self-defence and killed the victim, can he use the defence if it was an honest belief?

Answer 25

If his mistake that the force was necessary was induced by voluntary intoxication, the defence will not apply.

Question 26

Can the defendant use the self-defence private/public defence, even if there is no actual attack on them in progress?

Answer 26

Yes, the defendant will be able to show that they believed that force was necessary, even where there is no actual attack on them in progress: the defendant can believe that force is necessary where they apprehend an imminent attack.

Question 27

Where in legislation can the rules on intoxication and defences be found? What are they?

Answer 27

s76(5) CJIA 2008: “But ss(4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced”.

In Taj [2018], it was held that the words attributable to intoxication in s76(5) included both:

• a mistaken state of mind as a result of being drunk or intoxicated at the time of the offence; and
• a mistaken state of mind immediately and proximately caused by earlier drinking or drug-taking.

Question 28

If a defendant harmed a motorist, who he mistakenly thought was a terrorist, was a direct and proximate result of his drinking and drug-taking in the previous days and weeks, can he use the private/public defence of self-defence?

Answer 28

No, he cannot as the state was attributable to intoxication.

Question 29

What does ‘attributable to intoxication’ mean in the context of self-defence?

Answer 29

It means that even if the defendant honestly believed that they were going to come to harm, but were intoxicated at the time (or due to previous use of drugs or alcohol), they cannot rely on a public/private defence of self-defence.

Question 30

When is use of reasonable force allowed as a defence?

Answer 30

The defence will fail unless the defendant’s use of reasonable force is necessary, or the defendant honestly believes that it is necessary.

Question 31

What counts as ‘necessary’ when looking at the defendant’s use of force?

Answer 31

It will only be necessary if used to repel immediate attack or to prevent an immediate crime, or to effect or assist lawful arrest.

Question 32

If force is used to repel a future attack, will the defence apply?

Answer 32

No, if force is used to repel a future attack, the defence will fail.

Question 33

Can a defence be found when the defendant has pre-armed themselves with the weapon that they use?

Answer 33

Yes, the defendant’s use of force can be reasonable even where they have pre-armed themself with the weapon that they use. E.g. when a defendant pre-armed themselves with petrol bombs in case of riots.

Question 34

Can a defence be found when the defendant instigates the fight?

Answer 34

Yes, if the tables turn, but not if they only did it so they had an excuse to use force against the victim.

Question 35

Is use of force reasonable if it results in death?

Answer 35

Yes, it can be. It depends on whether the force was reasonable, rather than the outcome of the defendant’s conduct.

Question 36

When is it possible for the defendant to still have a defence, even when they were the original aggressor?

Answer 36

As long as “the tables had been turned”, so that the victim was now the aggressor and the defendant needed to defend themself. It would not be enough that the defendant was now merely getting the worst of the fight. A complete role reversal was required.

Question 37

Explain why, in Hitchens [2011], the defendant was not able to rely on a defence when he slapped his girlfriend in order to prevent her ex-boyfriend from entering the property, even though he was worried about the ex causing an offence against him?

Answer 37

• No crime was being committed at the time of the slapping
• No certainty any crime was going to be committed
• Defendant also had other options, e.g. calling police, leaving the property

Question 38

Give some examples when self-defence applies where the defendant used force against an innocent third party to prevent a crime being committed against someone else or themselves.

Answer 38

• a police constable bundling a passer-by out of the way to get at a man the constable believed was about to shoot with a firearm or detonate an explosive device
• a person seeking to give car keys to another to enable them to drive and X, believing that other to be unfit to drive through drink, knocking the keys out of the first person’s hands and retaining them

Question 39

What kind of test will the amount of force be examined under?

Answer 39

An objective test - whether or not the defendant used reasonable force.

Question 40

Will the court change its view depending on the object of the threat? E.g. children or designer clothing?

Answer 40

Yes, the law will be much more forgiving where the defendant uses force to protect their children from an attacker than where the defendant uses force to protect designer clothing from damage.

Question 41

Is the test whether the jury thought that the amount of force used by the defendant was reasonable in the believed circumstances, or whether the defendant thought that the amount of force that they used was reasonable in the circumstances they believed existed?

Answer 41

It it the former, it depends on whether the jury believes that the force used was reasonable in the believed circumstances.

Question 42

Does the amount of force need to be exactly proportionate as to the situation?

Answer 42

No, it doesn’t have to be exact. They can have some ‘elbow room’.

Question 43

What does s76(7)(a) and (b) tell us?

Answer 43

s76(7)(a) recognises that the defendant will often be acting in a pressured environment. A certain amount of “elbow room” is therefore given to the defendant. They will not be expected to be precise in measuring out exactly how much force they should use in response to the threat in the very limited time that might be available to them.

s76(7)(b) tells us that, where the defendant’s response was instinctive and where the defendant seemed to be acting for a legitimate purpose, then this will be good evidence that they acted reasonably. The assumption lying behind this rule is that it will normally be reasonable to react in an instinctive manner in response to a threat. A “legitimate purpose” means for the purpose of acting in public or private defence (s76(10)).

Question 44

Is there a duty to retreat?

Answer 44

No, the fact that the defendant does not retreat is merely a factor that the court can consider in deciding whether the level of force used by the defendant was reasonable. There is no duty to retreat.

Question 45

How could a person confronting a burglar or intruder in their home able to argue both a private and a public defence?

Answer 45

As well as defending their property and themselves and their loved ones (private defence), they could also argue that they are preventing crime or trying to make an arrest (public defence under s3 CLA 1967).

Question 46

Which case change the way the law looked at ‘householder cases’?

Answer 46

Martin [2001], where the defendant shot at intruders as they tried to escape, killing one and seriously injuring the other. The defendant was found guilty of murder and his defence failed on the basis that he had used an unreasonable amount of force, bearing in mind the fact that the intruders were running away and were no longer a threat.

Question 47

Where can you find the legislation surrounding ‘householder cases’?

Answer 47

s43 Crime and Courts Act 2013, which inserted new sub-sections (5A and 8A–8F) into s76 CJIA 2008.

Question 48

What are the criteria for a ‘householder case’?

Answer 48

This is essentially where, according to s76(8A):

• the force is used by D while in, or partly in, a building that is a dwelling (home);
• D believes V to be in, or entering, the building, or part of, as a trespasser;
• D himself is not a trespasser.

Question 49

In a householder case, does V have to be a trespasser?

Answer 49

No, D just has to believe that V is a trespasser. And D cannot be a trespasser themselves.

Question 50

Does the householder defence apply where a person enters the building lawfully, but then outstays his welcome?

Answer 50

The householder defence also applied where a person had entered a building lawfully, but had later become a trespasser by, for example, exceeding the permission that they had to be there.

Question 51

Where can you find the ‘householder defence’?

Answer 51

s76(5A) CJIA 2008

Question 52

What does s76(5A) CJIA 2008 (the householder rule) allow?

Answer 52

It allows householders to use force that is not grossly disproportionate against intruders.

Question 53

How did the Collins case [2016] limit householder force?

Answer 53

Collins was put into a coma by the householder, who held him in a headlock for 6 minutes when he was caught entering the home. The householder was not tried on criminal grounds. Collins’ father argued that the s76(5A) law was against Art 2 ECHR, right to life, as it gave householders allowances to use disproportionate force.

Question 54

Is s76(5A) compatible with Art 2 ECHR? Why?

Answer 54

Yes, it is because it does not allow householders to use disproportionate force in all cases, but only those cases where the defendant uses force that is reasonable, in the circumstances they believed existed.

Question 55

What is the correct approach to s76(5A)?

Answer 55

a) Is the level of force reasonable, in the circumstances the defendant believed existed?
b) Is the conduct grossly disproportionate?
c) Does the jury believe that the force used was reasonable or was it disproportionate?

Question 56

What kinds of things should the jury be made aware of when looking at a householder case?

Answer 56

• They are focusing on what is reasonable or unreasonable in the circumstances.
• Parliament intended to provide more elbow room for self-defence for householders.
• They must consider the moment when a choice has to be made when an intruder enters a property.
• it would often be helpful to mention the circumstances which the jury might consider in determining whether the degree of force was reasonable.

Question 57

How is ‘grossly disproportionate’ defined?

Answer 57

It isn’t in legislation, so it must be carefully considered what differs grossly to merely disproportionate.

Question 58

How could the defence of self-defence be in conflict with the ECHR?

Answer 58

Art 2(2) permits killing only where it it absolutely necessary to do so. English law says that the defendant can still rely on the defence where they kill the victim – even where they make an honest but unreasonable mistake about whether force is necessary. Art 2 is stricter than English law.