Defences Flashcards
What is the basic definition of a defence?
An argument to deny liability
What is a complete defence?
Accused would be found not guilty
What is a partial defence?
Accused would be convicted of a lesser sentence
Is self defence a complete or partial defence?
Complete defence
What are the two different types of self defence?
- Common law self defence (defending oneself/another/property)
- Statutory self defence (Criminal Law Act 1967 s.3)
- prevention of crime
- assisting lawful arrest
What are the slight rule differences between common law self defence and statutory self defence?
- Common law defence may be used even where attacker is not acting unlawfully
- Only statutory applies where no imminent threat.
What are the elements of self defence?
- Victim’s must pose a threat
- Victim’s threat must be unjustified
- Use of force MUST be reasonable
- Amount of force MUST be reasonable
- Defendant must be acting to defend themselves/another/property
In householder cases when would force be unreasonable?
If force was grossly disproportionate per s.76(5A) of the Criminal Justice and Immigration Act 2008
In non-householder cases when would force be unreasonable?
If disproportionate, per s.76(6) of the CJIA 2008
What crimes can self defence be pled in as a defence to?
Any crime
What is meant by ‘the use of force must be reasonable’?
- Must have been reasonable for D to use force rather than escape
- If D could have escaped from threat peacefully but failed to do so then self defence not applicable
The law allows for a preemptive strike, what is meant by this and when is it acceptable?
- Where the defendant can take action to prevent something from happening
- E.g. AG Reference (No.2 of 1983)
- This is only acceptable if the use of pre-emtive strike is reasonable in the circumstances
Is it necessary to show an attack was imminent or immediate to prove self defence?
Not absolutely necessary
In non-householder cases how is the amount of force decided as being reasonable?
Based on what the reasonable person would find reasonable NOT the defendant.
EXAMPLE
- Tony has his wallet stolen by a pick pocket
- He immediately pulls out a handgun and shoots the pick pocket in the back of the head killing him?
Advise Tony as to whether a successful plea of self defence may be used.
- Highly unlikely as the reasonable person test would be used
- That being would a reasonable person see the use of a handgun on a pick pocket as reasonable
- Of course the matter is of opinion but it is likely that the reasonable person would not
EXAMPLE
- V is staying with a friend
- During the night V hears glass break downstairs
- He picks up a baseball bat and goes to investigate
- A masked man with a knife in hand approaches
- V swings the bat cracking the intruders skull killing him
Would this be treated as a householder case seeing as V was not in his own home?
Would V likely be able to use self defence in the circumstances?
- It would be treated as a householder case
- Therefore in this case the force used by V would only be unreasonable if ‘grossly disproportionate’
- It is likely a jury would find the the amount of force used to be reasonable in the circumstances
What happened in the case of R v Williams 1984?
- Appellant witness man attack youth
- Appellant rushed to aid of the youth attacking the man
- The facts in the appellant’s mind were wrong as it was actually the youth who was attacking the man and the man was protecting himself
- Appellant was convicted under s.47 of the OAPA 1961 for ABH
APPEAL
- On appeal the judge quashed the conviction
- He stated that the material question was whether the appellant’s belief was reasonable or unreasonable in the circumstances
- He also stated that if D may have been labouring under a mistake as to facts, he is to be judges according to his mistaken view of the facts.
What must the jury consider were a defendant pleads self-defence on a mistaken view of facts?
- Whether the facts perceived by the defendant justified the level of force to be reasonable.
What happened in R v Oye 2013?
APPEAL OF SELF DEFENCE LOST ON GROUNDS OF INSANE DELUSIONS
- Oye (Defendant) had been found in coffee shop staff room “twitching strangely”
- police called and on arrival he hid in ceiling and threw crockery at them
- He believed the were agents of evil spirits
- He was eventually persuaded down and was arrested
- He then attempted to escape from cell by punching two police officers
- He was convicted of affray and GBH
- Key question at trial was whether he could rely on self defence based on insane delusions he was being attacked
APPEAL
- Trial judge dismissed appeal
- Stating it was of very little sense to talk of the reasonable lunatic
- Acknowledged the subjective test in s.76 but indicated there was also objective considerations to be had
- It was right to dismiss the appeal as despite suffering insane delusions, even in that state of mind the use of force or amount of force used was not reasonable in respect of the facts the defendant perceived.
s.76 of the Criminal Justice and Immigration Act 2008 states that a degree of force used by a defendant is accepted if reasonable in the circumstances.
Q. If a defendant had a mistaken belief in the circumstance what must he show to successfully make a plea of self defence?
- A genuine belief in those circumstances
- A mistaken belief in the circumstances if it is a reasonable one
What is self induced self defence?
Where a defendant instigated a fight and then relies on self defence?
Is self induced self defence difficult to plead?
YES
- Majority of the time if the defendant caused a fight to begin with they cannot rely on self defence
What happened in R v Keane 2010?
- Case where defendant was offered a lift home by victim
- In the car the defendant was rude to female passenger and pushed her
- The victim approached the defendant
- D punched V which caused serious injury
- D plead self defence as he believed V was going to hit him
- Trial judge directed jury defence not available where D is the aggressor or deliberately provoked fight
APPEAL
- Appeal Dismissed
- Trial judge was correct
- Where D is aggressor or deliberately provokes fight no guaranteed defence
- Defence would only become available where the V’s violence was so out of proportion to act original aggressor e.g. if he pulled out a knife
How is the defence of necessity generally viewed?
The lesser of two evils