Evaluation Of Selfdefence Flashcards
(Front – P):
One major issue with self-defence is whether the force used was necessary.
Dev/I/E/H:
• Development: The jury decides if the force was necessary, but it can be hard to determine, especially when considering S.76(6)(A) Criminal Justice and Immigration Act 2008, which says there’s no duty to retreat when acting for a legitimate purpose.
• Impact: This makes the law unclear, as there’s confusion about whether the defendant should have retreated before using force.
• Example: In R v Bird, the defendant was not required to show unwillingness to retreat, even though retreat was considered.
• However: This creates uncertainty about when self-defence applies and can lead to inconsistent decisions.
(Front – P):
The law creates confusion in householder cases.
Dev/I/E/H:
• Development: It’s morally accepted that people can defend themselves in their homes, but the question remains—can a householder use any amount of force?
• Impact: The law says force mustn’t be grossly disproportionate, but terms like ‘reasonable’ and ‘disproportionate’ aren’t clearly defined, which creates confusion.
• Example: Householders can use more force than others, but it’s unclear what’s lawful or unlawful force.
• However: There’s no clear line, leading to uncertainty about what force is acceptable.
(Front – P):
Self-defence can apply even before an attack happens.
Dev/I/E/H:
• Development: A person can prepare to defend themselves before an attack occurs, as shown in AG Ref No.2, where preparations for self-defence were allowed.
• Impact: This can make it unclear when self-defence is valid, as the defendant could break the law by preparing to defend themselves.
• Example: If someone sets up to defend themselves but breaks the law in doing so, it’s still unclear whether self-defence applies.
• However: This creates confusion over how much preparation is allowed before self-defence can be used.
(Front – P):
Self-defence is an “all or nothing” defence
Dev/I/E/H:
• Development: In self-defence, a person is either fully acquitted or fully convicted, with no middle ground for excessive force.
• Impact: This is problematic because, in some cases where force was justified but excessive, a partial defence could be more appropriate.
• Example: In R v Bird, the defendant successfully used self-defence, while in R v Martin, the defendant couldn’t use self-defence when using excessive force.
• However: It’s unfair that there’s no room for a partial defence in cases of excessive but reasonable belief in danger.
(Front – P):
There’s confusion in the self-defence law due to conflicting legislation.
Dev/I/E/H:
• Development: The law has contradictions, especially between S.76(6) of the Criminal Justice and Immigration Act 2008, which says the force used must be reasonable, and the Crime and Courts Act 2013, which gives householders more leeway.
• Impact: This causes confusion for juries, as it’s not clear what is considered reasonable force for non-householders and householders.
• Example: In R v Williams, self-defence wasn’t allowed because the danger had already passed.
• However: This conflicts with AG Ref No.2, which allows preparation for self-defence, leading to more inconsistency in the law.
Introduction
Self-defence allows individuals to use force to protect themselves from harm. However, issues arise around the reasonableness of force, the “all or nothing” nature of the defence, and whether personal characteristics should be considered. These inconsistencies highlight the need for reform in self-defence law.
Conclusion
In conclusion, the law on self-defence is inconsistent and unclear, particularly regarding the reasonableness of force, the all-or-nothing approach, and the consideration of a defendant’s personal characteristics. These issues lead to unfair outcomes and highlight the need for reform to ensure a more consistent and just application of the defence.
