Defences: Self-Defence

Question 1

What are the two separate issues in respect to the defence of self-defence?

Answer 1

• public defence or the prevention of crime: section 3 of the Criminal Law Act 1967
• self-defence at common law

Question 2

What section clarifies the self-defence defence?

Answer 2

Section 76 of the Criminal Justice and Immigration Act 2008 was passed to clarify the two defences following public concern after the Tony Martin case but it did not change the law in any way.

Question 3

Is self-defence a complete defence?

Answer 3

Self-defence is a complete defence, which is successfully pleaded leads to acquittal.

Question 4

What is the public defence?

Answer 4

Under section 3 of the Criminal Law Act 1967 a person may use reasonable force to prevent crime or arrest or help arrest offenders or suspecting offenders or persons unlawfully at large.

Question 5

R V Jones 2004?

Answer 5

The defendants were protesting about the war in Iraq and caused damage to military bases. They argued they had a defence under Section 3 as they were trying to prevent an international crime of aggression against Iraq. The House of Lords rejected their appeal on the grounds that ‘aggression’ is not a crime.

Question 6

What is private defence?

Answer 6

A defendant is allowed to defend themselves and others, even complete strangers and property. There are rules and limitations on the defence. When a defendant pleads self-defence the prosecution must prove that:

• the use of any force was unnecessary or if some force was justifiable
• the actual degree of force used was unreasonable

Question 7

What is necessity of force?

Answer 7

The court will take into account whether the use of force was necessary looking at the three key issues:

• possibility of retreat
• imminent threat
• whether the defendant made a mistake which caused them to think their action was justified.

Question 8

What is the possibility of threat?

Answer 8

It used to be thought that the defendant would have to demonstrate they were not wishing to fight and if there was a chance to escape this would deprive them of the defence. A number of cases have now made clear this is not the case.

Question 9

R V Bird 1985?

Answer 9

The defendant was celebrating her 17th birthday when her ex-boyfriend arrived with his new girlfriend. A heated argument followed and it resulted in the defendant gouging out his eye with a glass. The judge told the jury at the trial that she should have demonstrated she did not want to fight but the Court of Appeal quashed her conviction for wounding as it was not necessary for her to show reluctance to fight and that the defence of self-defence was available.

Question 10

What is an imminent threat?

Answer 10

The defendant will only be justified in reacting to a threat which is imminent, it just means there must be some immediacy about the threat. A person does not have to wait until they are attacked before they can use force. In limited circumstances the law will allow a pre-emptive attack.

Question 11

R V Beckford 1988?

Answer 11

Lord Griffiths stated ‘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’. This obviously has to be strictly justified or there is a danger of vigilantes.

Question 12

Cousins 1982?

Answer 12

The defendant believed that a contract had been taken out on his life. Armed with a shot gun he visited the father of the person who he believed wanted him killed and told the father he would kill the son when he saw him. He was charged with making threats and relied on the section 3 defence. The judge told the jury that the defence was not available as the defendant’s life was not in imminent danger. The Court of Appeal quashed the conviction and held it was lawful to excuse a threat to kill if it is made in prevention of crime or for self-defence, provided it is reasonable in the circumstances to make such a threat.

Question 13

R V Rashford 2005?

Answer 13

The Court of Appeal ruled that in principle it was at least possible to plead self-defence to a charge of murder even though the defendant admitted he had gone out looking for revenge. Rashford’s conviction was upheld as he had not actually been placed in a position where it was necessary to use force when he stabbed the victim through the heart.

Question 14

What is preparing for an attack?

Answer 14

If a person thinks they are about to be attacked then in some circumstances they may have a defence if they break the law in preparing for that attack. The defendant need not wait to be hit first but there must be an element of urgency and inevitability.

Question 15

Attorney-Generals Reference (No 2) 1983?

Answer 15

The defendant’s shop had been attacked and damaged by rioters. Fearing further attacks he made some petrol bombs which he stored under the counter. The court of appeal felt his acquittal for the offence of possessing an explosive substance was justified. The threat was sufficiently imminent for him to feel the need to defend himself. The courts limit this.

Question 16

R V Malnik 1989?

Answer 16

The defendant went to the flat of a man who was believed to have stolen some valuable cars from his associate. He said that he knew that the man was violent so he took a rice flail to protect himself. He was convicted of possession of an offensive weapon and his conviction was upheld. He was not in imminent danger of an attack as he himself was creating the dangerous situation by going to the mans house. The self-defence was not available.

Question 17

What happens if the defendant made a mistake which caused them to think their action was justified?

Answer 17

If a defendant makes a mistake which leads them to believe there are circumstances making defensive actions necessary the courts will assess the necessity of the defendants conduct on the facts as the defendant believed them to be even if the mistake was not a reasonable one to make.

Question 18

R V Williams (Gladstone) 1987?

Answer 18

The defendant was on a bus when he saw a man attacking a youth. In fact the man was trying to arrest the youth who had just mugged an old lady. Rushing to the rescue the defendant leapt off the bus and asked the man what he was doing. The man told him he was a police officer, which he was not, so Williams asked to see his ID. There was a struggle and the man was injured. At his trial the jury were directed that Williams had a defence only if he believed on reasonable grounds that the man was acting unlawfully. The Court of Appeal quashed his conviction. The mistake only had to be honest, it did not have to be reasonable. Section 76 (4) of the Criminal Justice and Immigration Act 2008 confirms Williams.

Question 19

When can reasonable force be used?

Answer 19

The prosecution will not only have to prove that the use of force was unnecessary but also if some force was justified the degree of force used was reasonable. The defence has a both subjective and objective element. A person may use such force as is objectively reasonable in the circumstances of the particular case. In offences requiring mens rea, what is reasonable is judged in the light of the circumstances as the defendant believes them to be, whether reasonably or not. The jury decide if the amount of force used in the circumstances was reasonable based on the defendant’s perception of the circumstances. So if the defendant thinks someone is attacking him with a gun and it is actually a cucumber, he could use the degree of force that a reasonable person would use if it was actually a gun. The Criminal Justice and Immigration Act 2008 confirms that a mistake about the level of force needed only has to be honest and not necessarily reasonable. If the defendant uses excessive force then self-defence will not be available.

Question 20

R V CLegg 1995?

Answer 20

A solider on check point duty in Belfast fired four bullets at a car driven by joyriders when it failed to stop as an order. Scientific evidence showed that the last shot was fired when the car had passed and was fifty feet along the road. The victim who sat in the back seat was killed by the last shot. The defendant was convicted of murder and it was upheld by the House of Lords who rejected his plea of self-defence. It said that whilst the first three shots were evidence of self-defence the last shot was excessive.

Question 21

R V Martin 2001?

Answer 21

The defendant shot two burglars as they ran away from his farmhouse and one of them who was shot in the back died. His defence of self-defence was rejected by the jury. The Court of Appeal rejected his appeal because excessive or disproportionate force had been used. Subsequently on appeal they substituted a manslaughter verdict on the grounds of diminished responsibility because he had a personality disorder which meant he may have thought he was in a dangerous situation.

Question 22

Advantages of the defence of self-defence?

Answer 22

• Rights of individuals to self-help needs to be regulated in a civilised society. Being allowed to use force in self-defence is an exception to the normal rule that we owe a duty not to kill or injure someone else. But that obligation only applies when the state can protect a citizen. When it cannot then a citizen can use self-help and defend themselves or others. This can be necessary because it would be unrealistic to expect help to arrive in time.
• Excessive force, this means the defence fails completely. If a defendant causes a non-fatal offence the judge can take self-defence into consideration when sentencing. The defendant may have gone too far but some degree of force might have been acceptable in the circumstances and in light of what the defendant believed. If the charge is murder then the judge has no discretion.
• degree of force, the clarification of the law as a result of the Criminal Justice and Immigration Act 2008 means that the degree of force that is relevant has to be reasonable in the circumstances but the reasonableness is judged against what the defendant believed the circumstances to be.

Question 23

Disadvantages of the defence of self-defence?

Answer 23

• relevance of the defendant’s characteristics, it could be argued that if a defendant has a psychiatric condition, for example that might make him paranoid and believe he is in grave danger, then the court should take that into account when considering if the use of force was reasonable. In Martin the court ruled this should not be taken into consideration.
• there may be conflict with the Human Rights Act 1998, Article 2 says everyones rights shall be protected by law but deprivation of life does not contravene that article if it results from force which is no more absolutely necessary in defence of any person from unlawful violence. Article 2 only applied when the aggressor dies, it does not cover threats of violence or attacks on property but English law does allow reasonable force against a burglar.
• Has our law gone too far in protecting a defendant? There is a subjective element, the defendant’s belief may not be reasonable.
• Protecting property, what is reasonable force in this context? Should we allow people to use force to protect things as well as people or should we restrict it. Lots of cases in the press focus on householders attacking burglars. Does the law give adequate protection here, most legal commentators think it does, others do not.
• Rules have largely been developed in the context of inter-male violence. It ignores domestic violence. There is an argument that where a woman has been a victim of domestic abuse they should be allowed to use self-defence even if their partner is asleep or they have used a weapon. This has been allowed in the US and Canada e.g. in the case of Diaz, a women succeeded in self-defence after she shot her sleeping husband.

Question 24

Reform of self-defence?

Answer 24

At the moment self-defence is a complete defence. It has been argued that it could be a partial defence where the defendant has used too much force. Now the Coroners and Justice Act 2009 says there is a partial defence to murder where the defendant killed in response to serious violence against themselves or some other identified person provided that a person of the defendants sex and age with a normal degree of tolerance and self-restraint and in the circumstances of the defendant might have reacted in a similar way.

Question 25

Intoxication, mistake and self-defence?

Answer 25

Normally, the defendant can plead self-defence even when there was no actual attack as long as they genuinely believe they are under attack and the force used was reasonable in the circumstances that the defendant genuinely believed to be the case. This will not apply if the reason they are mistaken is that they are voluntarily intoxicated. Lord Lane in the case of O’Grady felt that because self-defence is a complete defence, if the defendant was allowed a drunken mistake as an excuse then a dangerous criminal could go unpunished and families of victims would feel that justice had not been served. The Criminal Justice and Immigration Act 2008 confirms the rule in O’Grady that a mistaken belief caused through voluntary intoxication cannot give rise to self-defence.

Question 26

R V O’Grady 1987?

Answer 26

The defendant and his friend had been drinking heavily and fell asleep, the defendant said he awoke to find his friend hitting him so in self-defence he hit him with an ashtray. The next morning he discovered his friend was dead. The defendant was convicted of manslaughter and it was upheld by the Court of Appeal, it ruled that where the defendant was mistaken in thinking either that any force was necessary or the force used was reasonable and that the mistake was caused by intoxication then the defence would fail.

Question 27

R V Hatton 2005?

Answer 27

The rule from O’Grady was followed here, the defendant met the victim at a club and they both returned to the defendants flat. He battered the victim to death with a sledgehammer, he said he could not remember what had happened because he had been very drunk but he had a vague memory of an argument and a stick in the shape of a samurai sword was found under the defendants body which might indicate that the defendant was acting in self-defence. The trial judge ruled that a drunken mistake was not a defence, even to murder and the Court of Appeal upheld the conviction.