General defences: Self defence

Question 1

Source

Answer 1

Current law is a mix of statutory and common law rules

Question 2

Definition

Answer 2

Where the defendant had the AR with the required MR for the offence they are charged with but says they should not be criminally liable because they were acting in self defence

Question 3

It is a defence of…

Answer 3

justification

Question 4

Which act clarified:
- Prevention of crime (statutory defence) set out in S3 Criminal law Act 1967
- Defence of property was dealt with as ‘lawful excuse’ in the Criminal damage act 1971

But what act amended it?

Answer 4

s76 of the Criminal Justice and Immigration Act 2008

This act was amended by S43 of the Crime and Courts Act 2013

Question 5

What type of defence is self defence?

Answer 5

Complete defence (acquittal/walk free)

Question 6

Which crimes is self defence available to?

Answer 6

All crimes including murder and SLO’s (strict liability offences)

Question 7

Introductory discussion points (AO3)

Answer 7

The law tries to strike a fair balance between respecting an individual’s rights to protect themselves (others, property and to prevent crime) and the public policy message - which is to not to take law into your own hand or act as a vigilante - subjective elements of the defence recognise this S76(4)

However the law must not allow the defence to be used as an excuse for criminal activity, vigilantism and revenge attacks - the more objective elements at S76(6) and (7) recognise this

Question 8

State the elements that need to be proved for self defence

Answer 8

Element 1 - necessity of force
Element 2 - reasonableness

Question 9

Element 1 - necessity of force

Answer 9

S76(4) Jury decide if D genuinely believed force was needed

S76(4) (b) A genuine sober mistake about the need for force is allowed - Williams

S76(5) An intoxicated mistake about force required/used in self defence is never allowed - O’Grady and Hatton

Question 10

Element 1 - necessity of force (5 cases)

Answer 10

Beckford - D can deal first blow/fire shot - make a pre-emptive strike

Bird - D doesn’t have to try to retreat/show an unwillingness to fight. They can stand their ground and fight back. However S76 (6A) has amended this to say that the jury should consider whether D had the opportunity to get away and can choose to decide against Bird

AG’s ref - petrol bombs, D can make preparations in self defence and still get the defence

Rashford/Hussain - cricket bat, D will not get the defence if they were acting in revenge/vigilantism

Cousins/Keane (2009) - D can make threats in an act of self defence

Question 11

Element 2 - reasonableness - was the force used proportionate to the threat of the violence/possible harm

Clue: 4 S76

Answer 11

S76 (1) - force must be reasonable in the circumstances

S76 (6) - Available to non-householders, providing that the force used was not disproportionate

S76 (5A) - Available to householders providing that force used was not grossly (extreme) disproportionate. A matter for jury to decide on facts (Denby Collins)

S76 (7) - Jury cannot expect D to be exact about the amount of force used (weight to a nicety)
-> If D did what they honestly and instinctively thought was right, that will be good evidence that they were acting reasonably

Question 12

Element 2 - the case of Clegg

Answer 12

D, a soldier shot and killed a joyrider whom he thought was a terrorist

Not acting in self defence - last shot was excessive force and the ‘threat had passed’

Question 13

Element 2 - case of Martin

Answer 13

D shot and killed a burglar - not acting in self defence as D shot when V was making an escape

Question 14

EVALUATION: Not fit for purpose

Answer 14

S76 (5A), which allows homeowners to receive S-D as long as they haven’t used grossly disproportionateforce, (may have gone too far). It’s possible that cases like Denby Collins gave the defendant an excessive amount of power. Is this a step towards individuals enforcing the law on their own and perhaps applying punishment. Whendisproportionate (too much)—is used in a murder case, the all-or-nothing effect of S-D is viewed as unfair, outdated, and unsuitable. Many people think that it ought to be a partial defence for murder (this was suggested by the now-abandoned LC Report 2006).

This is made clear by cases like Clegg, Martin, e.t.c. Determining whether the defendant subjectively felt that pre-emptive strikes, etc., were necessary is an extremely difficult task for a jury to resolve. A jury may rule in favour of the homeowner rather than the burglar, and the CPS has acknowledged this when claiming that holding a jury trial in the Denby Collins case was unnecessary.

Question 15

EVALUATION: JUST

Answer 15

It is referred to as a “justification” defence, in which the defendant admits to killing the victim or committing NFO, but claims that their actions were appropriate and justifiable. Because it is a complete defence and the defendant who satisfies the components will not be prosecuted, the defence has the capacity to bring justice to the defendant.

Justice for all parties involved is achieved by the several elements/requirements, both subjective and objective tests do guarantee that the defence is granted only to those who are truly deserving and is not used as an excuse by those who take the law into their own hands. Certain examples, such as Bird and AG’s Ref (preparing petrol bombs in S-D) and the subjective tests S76(4), have been interpreted too liberally in favour of the defendant, according to some. They don’t convey the proper message. If someone refuses to back down, fights back, and doesn’t give up, they should be granted the defence. This is therefore fair on the defendant

Question 16

EVALUATION: Up to date

Answer 16

Self-defence laws were found in several statutesand common law up until 2008, when the Criminal Justice and Immigration Act 2008 was passed. The law currently essentially covers the laws regarding property protection, crime prevention, and self-defense.

The goal was to improve accessibility and clarity of the law. Just 14 years have passed since its reform (which is recent in legal terms). Given that the Act was amended in 2015—just seven years ago—to reflect home circumstances, additional statutory revision is unlikely.

Question 17

EVALUATION: Intoxicated errors/reform

Answer 17

Intoxicated mistakes: O’Grady and Hatton said that a D who makes an intoxicated mistake about the need for force in self- defence will not be allowed the defence to either a basic or a specific intent crime

S76(5) upholds the common law view that drunken errors do not provide D with a defence. Errors made while intoxicated: needs to be changed/ reformed.Many argue that it’s important to maintain the strict public policy approach to voluntary intoxication because it serves as a deterrent and changing this common law principle would allow people to avoid liability, leaving the public vulnerable. However, many also argue that the current approach is harsh because someone who is intoxicated is more likely to make mistakes.

Question 18

REFORM

Answer 18

At this point, more change is doubtful. On two recent instances, the Parliament has passed laws in these areas (2008 and 2013). Reforms are still needed in the all-or-nothing effect and the possibility of using self-defence as a partial defence for murder in cases when D really thought that using some force in self-defence was necessary but went overboard.

But this would be less of an issue if the murder laws were changed. Because a court might consider a lesser sentence for someone in this kind of situation if the mandatory life sentence for murder were removed.