evaluation of self defence Flashcards
point one all or nothing
One way that the law arguably does not meet the needs of the current legal system is because it is an all or nothing defence which does not take into account the circumstances when the victim has died.
This is very problematic and has attracted criticism as if a defendant honestly believes they need to act in self defence but Is disproportionate force the defence will not be available.
dp 1
This position was discussed at length by Lord Loyd in the case of Clegg, where he drew a distinction between murderers who kill from an evil and wicked. motive, and Private Clegg who simply reacted wrongly to a situation.
He stated further that it would have been fairer if the law had allowed the trial judge to convict of manslaughter, rather than murder.
wdp 1
In 1989 the Law Commission proposed that the law be reformed along these lines, they proposed that the old law of provocation was reformed to include excessive force used in self defence.
After proposing the same thing in 2005 the new defence of loss of control was created (Coroners and Justice Act 2009) which includes the qualifying trigger of a ‘fear of serious violence’ which goes some way to protect these defendants who use excessive force.
However, there will remain defendants who still have no defence in murder cases where they acted to defend themselves but did not lose self control, such as Private Clegg. This therefore suggests that the law does not actually meet the needs of the current legal system, and would benefit from further reform.
point 2 fair
law on self defence is arguably quite fair on the defendant, and recognises and reflects the circumstances that the force was used in, in that the defendant was, or believed themselves (or another), to be under attack»
dp 2
One key aspect of the law that is fair on the defendant is that the law allows the defence to succeed even if the defendant was mistaken as to whether they needed to use force in defence of themselves or another, such as in Gladstone Williams where the defendant mistakenly believed that the victim was attacking another man.
This reflects the lack of blameworthy state of mind, and recognises that a person who genuinely believes that they need to protect themselves or another should not be liable for doing so.
wdp 2
However, the law does not permit a mistake that is due to the defendant being intoxicated, which balances the competing interests of the defendant vs the victim. This is because the defendant is more likely to make a mistake when intoxicated, and it would be unfair for the defendant to be acquitted of an offence against another person just because they were intoxicated.
This further demonstrates how the law meets the needs of the current legal system.
p 3 women
However, the law on self defence has been criticised as it is not gender neutral, and arguably protects male defendants more than female defendants.
The physical vulnerability of women may require her to use a weapon whereas a man in the same situation would use his fists, even if the attacker is unarmed. This demonstrates that a female using a weapon used may be disproportionate, and so the defence would fail.
dp 3
Furthermore, studies have shown that females tend not to react to violence from males with further violence (as a male might), and are more likely to kill in anticipation of being attacked further. This would not be classed as self defence as the threat is not ‘imminent’.
wdp 3
The law has developed to some extent to protect women with the new defence of loss of control (from the old defence of provocation), and though the development of lo of control has removed the requirement for a sudden loss of control’, the defence is excluded if there is a considered desire for revenge’ and the abused woman’s behaviour may be viewed as a ‘desire for revenge alongside the element of fear. This, therefore, suggests that the law does not actually meet the needs of the legal system as it does not provide a defence for some of the most vulnerable members of society.
