General Defences Flashcards
Self defence AO1 (Advise whether)
-General defence section 3 Criminal Law Act 1967 – defence for a person who uses force reasonable in the circumstances to prevent crime or to lawfully arrest offenders or suspects or those unlawfully at large.
The defence normally covers non-fatal offences against the person but can be other crimes such as murder or against property – Hussey
The force used must be considered necessary meaning that the use of force is not justified if it is not necessary. It will be deemed necessary in the circumstances which exist or which the D genuinely believed existed including where the D makes a genuine mistake as to the facts. As shown in (R v Williams) 1987 it doesn’t matter whether the mistake was reasonable or not.
With the defence of self defence D is under no duty to retreat when acting for a legitimate purpose. The D does not have to wait for an attack to start – i.e. you can be seen as acting in self-defence if you strike first - Bird (1985).
The defence allows Pre-emptive strikes meaning a person is able to make preparations in self-defence if it is reasonably necessary to meet the force of, for example, the attackers. This was confirmed in AG Ref No 2, 1985.
The defendant can be the aggressor if the V’s response is wholly disproportionate and seriously threatens the D
but this will only work if it was not the D’s aim all along to give themselves an excuse to use much more serious violence. This was addressed in the R v Rashford.
For self defence, s43 states that The force used by D must be reasonable/proportionate in all the circumstances including:
the actual circumstances
the circumstances D believed
the time available to D to decide on his actions
the risk to D, the risk to V. (Oye 2013
_The basic rule is set out in s.76(6) Criminal Justice and Immigration Act 2008 which states that except in a ‘householder’ case, force which is disproportionate will not be reasonable. A person may not be able to ‘weigh to a nicety’ the exact measure of an action, and if they thought it was necessary, this is strong evidence that it was necessary. With self defence, Excessive Force – will not be proportionate/reasonable meaning force that is a lot more violent and not reasonable used when the threat doesn’t exist anymore (Clegg) 1995 (Martin) 2002.
Householders may use disproportionate force but not grossly disproportionate force (not reasonable force) (Ray) 2017
section 76 Criminal Justice and Immigration Act 2008.
The current law relating to self-defence is easily criticised and needs to be reformed urgently.
Discuss the extent to which this statement is accurate. (20)
