Defences: Justifications, Excuse & Self-defence Flashcards
Prosecution fails if…
Failure to prove any element of the offence
Defences
- Responses to alleged or established criminal liability
- Specific v General
- Positive v Negative
- Justification v Excuses
Justifications
- Render D’s conduct unlawful
- D’s actions were not wrong: focus on the rship between D and society
Justificatory defences
- Self defence
- Necessity
- Lawful discipline
- Public authority
- Consent
Excuses
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
Excusatory defences
- Duress
- intoxication
- Insanity
- Automatism
- Doli Incapax
- Mistake
- Loss of control - Murder only
- DR - Murder only
The doctrine of public and private defence
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
Reasonable force may be used in defence of the public… (3 step)
- To prevent the commission of an offence
- To effect a lawful arrest
- To prevent or terminate a breach of the peace
Reasonable force may be used in defence of private interests…(4 step)
- Defence of oneself or another against the actual or imminent attack
- Defence of one’s property or another’s against attack
- Termination of unlawful imprisonment of another or oneself
- Termination of an imminent or actual trespass
BOP in self defence cases:
D raises the defence
Prosecution must rebut the existence of the defence beyond reasonable doubt
s.76 Criminal Justice & Immigration Act 2008
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
Self defence - 2 stage test
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
Stage 1: Necessary
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
“Absolutely necessary” & a “last resort”
McCann and others V. UK [1995] 21 EHRR 97
R v HM Coroner for Inner London (2006)
Keane; McGrath (2011)
Self defence not available to D who provokes violence
Was the force necessary? (3 step criteria)
- Genuine Belief
- Threat of force is immediate
- No duty to retreat
Genuine mistaken belief - was it honestly held? (subjec test)
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.
S.76(5) But subsection (4)(b) does not enable D to rely on any mistaken belief is attributable to…
intoxication that was voluntarily induced - O’Grady (1987)
Attributable to intoxication; R v Taj (2018)
Immediate threat - may jusitfy a pre-emptive strike
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.”
Immediate threat - not retaliation
Hussain and Hussain (2009)
No duty to retreat
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 )
Stage 2: Reasonable (test)
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…”
Excessive force
Martin (Anothny Edward) [2003]
Clegg (1995)
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 “
Householders - a special case
- Householder: exsessive/disproportionate force = Not guilty
- Householder grossly disproportionate force = Guilty
- R v SoS for Justice (2016)
s.76(5A) - householder
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.
s.76 (8A) CJ & immigration Act 2008 - Reasonable force for purposes of self defence
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
s.76 CJ & Immigration Act 2008 - reasonable force for purpose or self defence
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
Necessary? Pr-emptive strike
AG’s Reference - No. 2 of 1983
Reasonably necessary?
Cairns (2005)
Oye (2013)
