Chapter 11: General defences - Self-defence

Question 1

What are the 3 categories that applies to self-defence?

Answer 1

1. Defence to self and third party
2. Defence to property
3. Prevention of crime

Question 2

What are the provisions for the 3 categories to self-defence?

Answer 2

Defence to self and third party

• Common law & Section 76 Criminal Justice and Immigration Act 2008 -
  1. Section 76(2) - Ambit - old laws are still recognised
  2. Section 76(3) - Quantifies reasonableness

Defence to property

• Criminal Damage Act 1971

Prevention of crime (public defence)

• Section 3 Criminal Law Act 1967

Question 3

What is a very important thing to note about defence to self and third party?

To mention in answers

Answer 3

Statute - only provides when it is necessary to use force ( doesn’t say how much force)

Common law - quantifies how much (amount) force is justified as self-defence

statute does not say how much force is reasonable, so need to get from common law

Question 4

What are the 5 overviewing points on self-defence?

Answer 4

1. A general defence - to any offence
2. Burden of proof - prosecution to disproof
3. Justification defence - justified (negates) AR being conducted
4. Outcome - total acquittal
5. No mental characteristics

Question 5

What are the 8 components/elements of self-defence?

Answer 5

1. Introduction (what is self-defence)
2. 4 rationale
   3.Private or public type offence
3. A threat of unjustified harm
4. Protected interests
5. The dual test (common law self-defence)
6. No mental characteristics are relevant
7. Mistake due to intoxiaction

Question 5

What is self-defence?

Answer 5

When D pleads self-defence, he is essentially saying that he acted lawfully

1. Meaning an unlawful force was inflicted onto the D
2. D uses reasonable force in self-defence
3. This would suggest that AR is not established (R v Abraham [1973])

Question 5

What are the 4 rationale (reasons) for self-defence

Answer 5

1) D chooses the lesser of two evils (best/better option)

• D’s act was justified as he caused some harm to prevent greater harm. The overall result of greater harm was avoided

2) Morally wrong/unlawful conduct committed by V
* Thus, V loses his right to protection
* Which D would be then authorised to use force to prevent the V from causing harm to him or another

3) D acting in order to uphold his rights under the law

• D may be acting to protect his right to personal autonomy and personal protection

4) Public officers may be permitted to break the law

• In order to prevent crime or carry out their statutory duties

Question 6

What is the difference between private denfence and public defence?

Where do each of them originate from?

Answer 6

Private defence

• From common law - not only for individual’s self (R v Rose) -
  1. Defendant himself
  2. Protection of a third party
  3. One’s own party

Public defence

• From Section 3 Criminal Law Act 1967 - applies in 2 circumstances -
  1. Prevent crime - Section 3(1) -
  A person may use such force as is reasonable in the circumstances in the prevention of a crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large

2. Lawfully arrest someone - Section 3(2) - Subsection (1) above shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose

Question 7

What is there to note about these 2 defences? (what do they have in common)

Case?

Answer 7

Whatever the defence is, the test is the same

• The force applied by the D must be reasonable (Devlin v Armstrong)

Question 8

What case showcases that there must be a threat of unjustified harm

Answer 8

Re (Conjoined Twins: Surgical Separation) [2001]

Question 9

Re (Conjoined Twins: Surgical Separation) [2001]

Threat of unjustified harm

Answer 9

Issue

• Whether the operation was lawful despite the fact that it would result in the death of M, which would make the surgeon liable for murder

Facts

1. Jodie and Mary were conjoined twins
2. Needed surgery, or both would die (and removing one would kill the other)
3. M would need J’s heart and lungs to survive after surgery (murder?)
4. Question was whether it was a lawful decision
5. Lord Justice felt constrained to M’s decision in her hopeless and dire position

Held

1. Doctor’s coming to J’s defence and removing the lethal threat of harm from M draining her life is a resort of legitimate self-defence

Note

• Judges considered 3 defences - duress, self-defence, & necessity

Question 10

What are the 3 types of protected interests?

Answer 10

1. Protection to self
2. Protection to others/third party
3. Protection of property

Question 11

What is there to note about protection to self?

Answer 11

Before this, Devlin v Armstrong suggested there should be a special nexus or relationship between the people relying on self-defence

• However, this is no longer such limitation (can even be a complete stranger)

Question 12

What is the case for protection to self?

Answer 12

R v Williams (Gladstone) [1984]

Question 13

R v Williams (Gladstone) [1984]

IMPORTANT

Protection to self

Answer 13

Facts

1. D saw a black youth rob a woman in a street
2. He caught the youth, but broke free from his grasp
3. Caught again and knocked him to the ground
4. V struggled and punched D in the face and was charged with assault (for actual bodily harm - Section 47 OAPA)
5. He thought the youth was being unlawfully assaulted
6. Jury were directed whether if it was an actual honest belief on grounds that reasonable force was necessary to prevent crime
7. V was convicted and appealed

Held

• Jury should have been directed that -
  1. prosecution has burden to disroof defendant’s actions (self-defence),
  2. If the appellant might have been labouring under a mistake as to facts, he was to be judged according to his mistaken view of the facts, whether or not the mistake was, on an objective view, reasonable or not. The reasonableness or unreasonableness of the appellant’s belief were material to the question of belief.

Takeaway

• Genuine mistake may be allowed, after considering the subjective test - 1) D’s belief 2) No reasonable person
• But may not be allowed in the objective test - jury decide

Question 14

What is the case for protection of others/third parties?

Answer 14

R v Williams (Gladstone) [1984]

Question 15

What are the 3 cases to protection of property

Answer 15

• R v Hussey [1924]
• Revil v Newsbury [1996]
• Tony Martin

Question 16

R v Hussey [1924]

Protection to property

Answer 16

Issue

• How much force to use to protect property

Held

• In order for conduct to be justified, defender must only use such force as is necessary to avert attack

Question 17

Revill v Newsbury [1996]

Protection to property

Answer 17

Facts

1. Old age pensioner was fed up with repeated break-ins to his shed and vandalism to his allotment
2. Spent the night in the shed with a shotgun
3. Shot through a hole in the door, seriously injuring the V

Held

1. Not justified self-defence
2. COA held that force was proportionate to a threat
3. Ordered to pay for damages

Question 18

Tony Martin case

Protection to property

Answer 18

Facts

1. D was convicted of murder in 1999
2. Was then reduced to manslaughter, after shooting a burglar dead
3. Freed in 2003

Held

1. D may use force to protect property provided the force used is reasonable

Note

• Ken Macdonald, Director of Public Prosecutors - “…The law is on the side of householders. We aim to reassure them that if they act honestly and instinctively, in the heat of the moment, this will be the strongest evidence that they have acted lawfully and in self-defence…”

Takeaway

• This is not to say that house owners can’t defend their property
• But in this case, force was unreasonable as he killed the V as a result (that’s why he was jailed)

Question 19

What is the dual test (common law self-defence)?

2 parts (cumulative test +)

Answer 19

Subjective test (first limb)

• Whether there was any necessity for any defensive action?
  1. Weather the D thought it was necessary

Objective test (second limb)

• Whether the amount of responsive force that was used was justified?
  1. Whether jury thought it was justified

Question 20

What are the 5 scenarios; with their relevant cases for the first limb (subjective test)?

Answer 20

Use of force is justified if it was necessary. No actual attack is needed before the D may use force. However, the danger the D apprehends must be sufficiently specific or imminent to justify the actions he takes

• Beckford v R
• R v Dadson [1850]

Cannot use self-defence to retrieve stolen property

• R v Demario Williams [2020]

D mistakenly uses self-defence

• R v William (Gladstone) [1984]

No duty to retreat before resorting to self-defence

• R v Bird [1985]

Where V were totally innocent

• R v Burns (Paul) [2010]
• R v Hichens (Peter Craig) [2011]

Question 21

Beckford v R

No actual attack needed for D to use force

Answer 21

Held

• Does not mean accused can incite (persuade) others to use force
• Others must also apprehend danger (in order to use force)

Question 22

R v Dadson [1850]

No actual attack is needed before the D may use force

Answer 22

Held

1. D cannot rely on self-defence, where D deliberately provokes the force or threat of force used against him

Question 23

R v Demario Williams [2020]

Cannot use self-defence to retrieve stolen property

Answer 23

Facts

1. V stole from D
2. D went to recover his stolen property
3. Killed V in the process
4. Claimed self-defence

Held

• Held to be an attack, not self-defence
• On grounds that, force could never be used to recover property that robbery or theft was once completed

Question 24

R v Williams (Gladstone) [1984]

D mistakenly uses self-defence

Answer 24

Facts

1. Mistakenly used self-defence
2. Thought boy was under threat

Held

1. Accused must be judged according to the facts as he believes them to be (according to D beliefs)

Question 25

R v Bird [1985]

No duty to retreat before resorting to self-defence

Answer 25

Held

1. There is no requirement that the person pleading self-defence had to retreat/run away/escape as far as he could before resulting to force
2. But rather consider whether it was necessary to use force and whether the force used was reasonable

Note

• This would be satisfied in the subjective test
• But not for the objective test (jury would expect him to run away)

this would fail in the reasonableness test

Question 26

R v Burns (Paul) [2010]

Where V were totally innocent

Answer 26

Facts

1. D hired prostitute and drove her to a secluded spot
2. D changed his mind about the transaction
3. Prostitute refused to get out of his car when he asked and requested for her to be driven back to the ‘pick up’ spot
4. D forcibly removed V from the car and pushed her away

Held

1. Guilty of Section 47 OAPA 1861
2. On grounds that, there was a difference where a person got into D’s car without invitation
3. Whereas in this case, D had willingly/agreed to take the V to a particular location

Takeaway

• Since the V was innocent, and had been allowed into D’s car
• D’s acts were not justified to forcefully remove her from the car

Question 27

R v Hichens (Peter Craig) [2011]

V were totally innocent

Answer 27

Facts

1. V (ex-girlfriend of D) moved in with a friend (D)
2. Boyfriend was opposed to this decision
3. Boyfriend threatened D and police were called in both occasions to control the situation
4. Police warned BF, but he still came back
5. V wanted to let him in
6. D told not to let him in and was slapped

Held

1. COA allowed conviction of D on appeal
2. They disagreed with trial judge that lawful force cannot be exerted on an innocent V to prevent the commission of an offence

Question 28

What is there to note about the second limb (objective test)?

Answer 28

Used to be accepted that defender can only use force in a reasonable circumstance. And the force must be proportionate to the attack

• Has been transferred into statute - Section 3(1) of the Criminal Law Act 1967

Question 29

What is a case that explains the second limb? (how the test works)

Explains how it works

Answer 29

AG for Northern Ireland’s Reference [1977]

Lord Diplock explains “the force used must be reasonable in the circumstances” -

• “What amount of force is ‘reasonable in the circumstances’ for the purpose of preventing crime is, in my view, always a question for the jury in a jury trial, never a ‘point of law’ for the judge…” The jury would also have to consider how the circumstances in which the accused had to make his decision whether or not to use force and the shortness of the time available to him for reflection, might affect the judgement of a reasonable man… [The jury] should remind themselves that the postulated balancing of risk against risk, harm against harm, by the reasonable man is not undertaken in the calm analytical atmosphere of the court-room after counsel with benefit of hindsight have exposed at length the reasons for and against the kind of degree of force that was used by the accused; but in the brief second or two which the accused had to decide whether to shoot or not and under all the stresses to which he was exposed.”

Takeaway

1. Question for jury
2. Consider the circusmtances of D
3. Within the shortness of time that D was in
4. Not to view D’s act within a clam atmosphere (i.e. court-room)

4 part test

Question 30

What are the 3 cases that applied the second limb?

Answer 30

• R v Scarlett [1993]
• R v Clegg [1995]
• R v Owino [1996]

Question 31

R v Scarlett [1993]

Second limb

Answer 31

Held

• Accused not to be denied the defence of self-defence if he unreasonably believed that the circumstances called for an excessive degree of force to be used

Takeaway

• It is to be viewed in the circumstances that the D was in, in such a short span of time
• Not to be regarded in the perspective of a calm scenario (i.e. like a courtroom)

Question 32

R v Owino [1996]

Second limb

Answer 32

Held

• A person must use such force as is (objectively) reasonable in the circumstances as he (subjectively) believes them to be
• The accused is not entitled to use a degree of force if he believes is reasonable

Question 33

Are mental characteristics taken into account with slef-defence?

Answer 33

Mental characteristics are irrelevant to self-defence

On grounds that self-defence is regarding the Actus Reus component; not the Mens Rea
component

• MR is not taken into account

Question 34

Can self-defence be raised when intoxicated?

What are the cases to support to support it?

Answer 34

Voluntary intoxication - unjustified/unreasonable - ‘crime’

• R v O’Grady [1987]
• R v O’Connor [1991]

Involuntary intoxication - justified/reasonable - no crime

• R v Fotherinham [1988]
• R v Hatton [2005]

Question 35

What is there to note about householder self-defence?

Answer 35

Section 43 of the Crime and Courts Act 2013 adds a new Subsection (5A) to Section 76 of the Criminal Justice and Immigration Act 2008

Question 36

What are the 2 cases for householder self-defence?

Answer 36

• Tony Martin
• Yaman