Criminal law — Necessity defences Flashcards
What needs to be shown in self defence/prevention of crime
That the force was necessary and that the force was reasonable.
Both under the S.76 Criminal Justice and Immigration Act 2008
Self defence - common law
Prevention of crime - (public defence) s.3 criminal law act 1967
Necessity of force
Force is not justified unless it is necessary. It will be necessary if its seen the so in the circumstances which exist or which the D genuinely believed existed.
Gladstone Williams (1987)
In this case a man saw a woman being robbed by a youth, he struggled with the youth to try and stop him. Another man saw this and believing the youth was being attacked stepped in to protect the youth.
Held: Defence of prevention of crime was valid even though his understanding of the facts was incorrect.
Does the attack need to have taken place for self defence to be valid?
No. The defence works even if the attack has not taken place, so long as it is imminent. In other words, the defendant can get the first blow in. Pre-emptive strikes are fine.
Bird (1985)
In arguing self defence it is unnecessary to show unwillingness to fight and there might be circumstances where the D might react immediately without retreating.
Reasonableness of force
The jury have the task of deciding whether in all circumstance D used reasonable force. The jury will consider:
1. The facts as D believed them
2. The circumstances of the attack
3. The time D had available to decide on a course of action
4. The risk to D balanced against the risk of harm to the V
Palmer
Where the force is excessive it will be unlawful
Clegg
Hard for juries to decide what is reasonable in some cases - however, it must be reasonable
Intoxicated mistake
s.76(5) D cannot rely on mistaken belief caused by voluntary intoxication - R v O’Hardy
When are actions not deemed to be reasonable in all the circumstances as believed?
When they are disproportionate in those circumstances.
S.76(6) CJIA 2008
- The situation may not let them get it exactly right
- If they only did what they thought was necessary then that is strong evidence that only reasonable action was taken.
There is no need to “weigh to a nicety”
How will householders be shown?
- Force was used whilst D was in or partly in the house
- D was not a tresspasser
- D must believe V to be a trespasser
Test is then:
1. Was the degree of force grossly dispopriotnante. If no,
2. Was the degree of force reasonable. If yes, this will be enough to apply.
R v Ray
D and V’s former partner were in a relationship and spending time in the former shared home. V arrived at the house in an angry mood and in the course of the fight and fearing he would be stabbed, D fatally stabbed V.
Held: In this case it was not reasonable.
R v Rashford
D sought V out intending to attack him but V and his friends responded out of proportion to D’s aggression. At this point D switched from attack to defence. D was not prevented from raising the defence of self defence if the response was wholly disproportionate.
NOTE - This does not work if the whole point of the initial aggression was to provoke a response which could be used as a defence. OR if they are in a fight and D wants to make his own unlawful actions, lawful.
