Evaluation of Self Defence Flashcards
Note: You use this with your knowledge of self-defence to get 20 marks (make sure to include the wording of the question in your answer)
The four criticisms for self defence
The All-or-Nothing nature of the defence is unfair
The law is unclear in relation to when
force is necessary
The defence has been allowed for Pre-Emptive strikes
The defendant’s characteristics are
not taken into account
The All-or-Nothing nature of the defence is unfair - P-DEV-E
An issue with self-defence is where a defendant is in a situation where they are genuinely defending themselves (or another), but they are judged to use excessive force and are therefore not allowed the defence. Due to the all-or-nothing nature of the defence, a defendant may find that they are left without protection of the law where they have – perhaps genuinely – overreacted to a stressful situation.
An example is R v Clegg, where he couldn’t use the defense because he overreacted in a stressful situation
However, it could be that the current law is justified to maintain the all-or-nothing approach as there is still an opportunity for the judge to pass a sentence which reflects the perceived lack of fault, including setting a lower tariff in prison for those convicted of murder.
The law is unclear in relation to when
force is necessary - P-DEV-E
This is a question that is given to the jury, and it can sometimes be quite confusing, as we don’t exactly know when force is necessary. If someone could run away but used force that saved them, was the force necessary, or should they have ran away?
This was seen in the case of R v Bird, where the D threw a drink over V and then V slapped him. D responded by hitting her, and while S.76(6A) CJIA says that there is no duty to retreat, it makes us question whether the force was necessary, since he could have left.
However, this is up to the jury decide, and if they find the force necessary or not depending on the situation then that is what is decided. Trying to change this would lead to a more unfair judicial system.
The defence has been allowed for Pre-Emptive strikes - P-DEV-E
This makes us question whether the D should be able to apply force to save themselves before they have even been attacked.
AG’s Ref (2 of 1983) states that preparing to defend yourself is allowed, even if the preparation breaches the law, though it begs the question as to whether it is fair to break the law in order to “stop” a threat which they aren’t currently facing.
However, it does not seem right that the law would expect someone to wait until the threat has been carried out - with possible fatal outcomes - before they are allowed to act.
The defendant’s characteristics are
not taken into account - P-DEV-E
The defense fails to take into account whether the D felt like they had to defend themselves with more force than they needed due to their characteristics
In the case of Martin, he had a paranoia disorder and it was especially elevated towards burglars, meaning that when he shot them, it was excessive force but maybe because he was paranoid. The defense does not take this into account his psychological characteristics, meaning he may be getting a worse sentence than he should.
This may seem unfair for defendants, however in the case law it seems the defence would have been unlikely to succeed in each case anyway - and there were alternative defences available for defendants, such as Insanity (Oye) or Diminished Responsibility (Martin).
Reform point
Compensation - the trespasser can actually claim compensation for injury
