Defences: Justifications, Excuse & Self-defence

Question 1

Prosecution fails if…

Answer 1

Failure to prove any element of the offence

Question 2

Defences

Answer 2

• Responses to alleged or established criminal liability
• Specific v General
• Positive v Negative
• Justification v Excuses

Question 3

Justifications

Answer 3

• Render D’s conduct unlawful
• D’s actions were not wrong: focus on the rship between D and society

Question 4

Justificatory defences

Answer 4

1. Self defence
2. Necessity
3. Lawful discipline
4. Public authority
5. Consent

Question 5

Excuses

Answer 5

D’s conduct is unlawful but something renders D immune from liability for that conduct in whole or in part

D’s actions were wrong he should not be held resp; focus on D as an individual

Question 6

Excusatory defences

Answer 6

1. Duress
2. intoxication
3. Insanity
4. Automatism
5. Doli Incapax
6. Mistake
7. Loss of control - Murder only
8. DR - Murder only

Question 7

The doctrine of public and private defence

Answer 7

Criminal Law Act 1967 s.3(1); ‘a person may use such force as is reasonable in preventing the commission of a crime, in effecting a lawful arrest of an offender or a person unlawfully at large

Question 8

Reasonable force may be used in defence of the public… (3 step)

Answer 8

1. To prevent the commission of an offence
2. To effect a lawful arrest
3. To prevent or terminate a breach of the peace

Question 9

Reasonable force may be used in defence of private interests…(4 step)

Answer 9

1. Defence of oneself or another against the actual or imminent attack
2. Defence of one’s property or another’s against attack
3. Termination of unlawful imprisonment of another or oneself
4. Termination of an imminent or actual trespass

Question 10

BOP in self defence cases:

Answer 10

D raises the defence
Prosecution must rebut the existence of the defence beyond reasonable doubt

Question 11

s.76 Criminal Justice & Immigration Act 2008

Answer 11

3) whether force is reasonable
4) Whether belief on which this is assessed must be true
6) Whether force must be proportionate
7) Whether a person might make a mistake as to what is reasonable/proportionate

Question 12

Self defence - 2 stage test

Answer 12

Stage 1: Was the use of force necessary?

No = guilty /Yes: Was the use of force reasonable in the circumstances - proportionate? necessary?

No = guilty/ Yes = not guilty

Question 13

Stage 1: Necessary

Answer 13

Article 2(1) ECHR “right to life” is not contravened when death results from the use of force which is no more than absolutely necessary

Question 14

“Absolutely necessary” & a “last resort”

Answer 14

McCann and others V. UK [1995] 21 EHRR 97
R v HM Coroner for Inner London (2006)

Question 15

Keane; McGrath (2011)

Answer 15

Self defence not available to D who provokes violence

Question 16

Was the force necessary? (3 step criteria)

Answer 16

1. Genuine Belief
2. Threat of force is immediate
3. No duty to retreat

Question 17

Genuine mistaken belief - was it honestly held? (subjec test)

Answer 17

Williams (Gladstone) (1987)
Beckford [1988] AC 130 - “A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot: circumstances may justify a pre-emptive strike.” Per Lord Griffiths 144.

Question 18

S.76(5) But subsection (4)(b) does not enable D to rely on any mistaken belief is attributable to…

Answer 18

intoxication that was voluntarily induced - O’Grady (1987)
Attributable to intoxication; R v Taj (2018)

Question 19

Immediate threat - may jusitfy a pre-emptive strike

Answer 19

Beckford [1988] AC 130 - Per Lord Griffiths at 144: “…a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike.”

Question 20

Immediate threat - not retaliation

Answer 20

Hussain and Hussain (2009)

Question 21

No duty to retreat

Answer 21

R v Bird (1985) - ‘Evidence that the defendant tried to retreat or tried to call off the fight may be a cast-iron method of casting doubt on the suggestion that he was the attacker or retaliator or the person trying to revenge himself. But it is not by any means the only method of doing that.’ (Bird [1985] 1 WLR 816 )

Question 22

Stage 2: Reasonable (test)

Answer 22

Palmer – “can’t weigh to a nicety, the exact measure of necessary defensive action…if jury thought D in a moment of unexpected anguish had only done what he honestly & instinctively thought was necessary…”

Question 23

Excessive force

Answer 23

Martin (Anothny Edward) [2003]

Question 24

Clegg (1995)

Answer 24

Per curiam – Lord Lloyd, “It is to be regretted that under existing law, on the facts found by the judge, he had no alternative but to convictthe appellant of murder, but the reduction of what would otherwise be murder to manslaughter in a particular class of case is a matter for decision by the legislature and not by the House of Lords in its judicial capacity “

Question 25

Householders - a special case

Answer 25

• Householder: exsessive/disproportionate force = Not guilty
• Householder grossly disproportionate force = Guilty
• R v SoS for Justice (2016)

Question 26

s.76(5A) - householder

Answer 26

In a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.

Question 27

s.76 (8A) CJ & immigration Act 2008 - Reasonable force for purposes of self defence

Answer 27

a) the defence concered is the common law defence
b) the force use by D while in or partly in a building, or part of the building that is a dwelling or is forces accommodation (or both)
c) D is not a trespasser at the time the force is used, and
d) at that time D believed V to be in, or entering, the building or part as a trespasser

Question 28

s.76 CJ & Immigration Act 2008 - reasonable force for purpose or self defence

Answer 28

a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action; and

b) that is evidence if a person have only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonnable action was taken by that person for that purpose

Question 29

Necessary? Pr-emptive strike

Answer 29

AG’s Reference - No. 2 of 1983

Question 30

Reasonably necessary?

Answer 30

Cairns (2005)
Oye (2013)