Defences - Self Defence

Question 1

Areas of Self Defence
& sources of law

Answer 1

• *Defence of the person**
• Common Law
• *Defence of Property**
• Criminal Damage Act 1971
• *Arrest/prevention of crim**
• s.3 Criminal Justice Act 1976

s. 76 Criminal Justice and Immigration Act 2003
(Basically here all condensed law on self-defence can be found!)

Question 2

Main Question in Self-Defence legal scenario

Answer 2

Was the force used reasonable in the circumstances as the defendant supposed them to be?

Force: Objective test
R v Owino (1996)

(Lord Morris, Palmer v R (1971) Defendants own believe that the force was reasonable may be given as evidence but ultimately the test is objective.

Context: Subjective test

• Nature of the force (e.g. weapons used)
• Degree of force

R v Lindsay (2005)
Intruders had guns, D chopped intruders with a sword into pieces, was sentenced to 8 years, because nature of force was ok, while the degree of force wasnt (in the eye of the courts)

Question 3

Context of Self Defence

Answer 3

Subjective Test:

Gladstone Williams (1984)

Beckford v R (1988)

s. 76 Criminal Justice and Immigration Act (2008)

Defendants personal characteristics:

• Psychiatric - Martin (DP) 2000
• Physical - Martin (Anthony) 2002
• Relationship with the victim - Law Commission,
• Partial Defences to murder,* 2004

Question 4

Arrest/prevention of crime

Answer 4

s. 3 Criminal Law Act 1967

Factors

• Nature of the force
• Degree of force
• Seriousness of the crime being prevented
• Possibility of preventing the crime by other means

Question 5

Harm will only be reasonable if..

Answer 5

• it is necessary to effect the arrest/prevent the crime

And

• Failing to effect the arrest/prevent the crime would have such grave consequences that a reasonable person would feel justified in using force.

Question 6

Arrest/prevention of crime
Police

Answer 6

Art. 2 ECHR

• Nachova v Bulgaria (2002)
  Non fatal crimes don’t render lethal police force legal

Reasonable force

• Reed v Wastie

Question 7

Important considerations - Self Defence

Answer 7

Burden of proof is with the prosecution to disprove the defence.

Article 2 ECHR and subjectivity

• Bubbins v UK (2005)

Retreating from confrontation

• R v McInnes (1971)
• s. 76(6a) Criminal justice and Immigration Act 2008

Question 8

Self defence - pre-emptive strike

Answer 8

• Devlin v Armstrong
• > I dont have to wait until the final result before I carry out an act of self defence

Question 9

Provoked attacked

Answer 9

Rashford 2005

-> Someone who starts an attack and gets re-attacked in an above and beyond unreasonable way, may still have access to the legal defence of self-defence

Question 10

Lawful force

Answer 10

R v McKoy (2002)

-> you may resist an unlawful arrest

Question 11

unusual example of the use of self defence:

Re A (conjoined twins)

Answer 11

Re A (conjoined twins) [2001] 2 WLR 480 [1] is a Court of Appeal decision on the separation of conjoined twins. The case raised several legal, ethical and religious dilemmas including whether it would be permissible to kill one of the children to save the other,[2] and whether it was permissible to act against the wishes of the twins’ parents.