general defences SELF DEFENCE AND MISTAKE Flashcards
what is self defense?
slef dfense
what are the two separate issues in this defense?
1) PUBLIC DEFENSE AND THE PREVENTION OF CRIME s3 of the criminal law act 1997- where a person may use reasonable force to prevent crime, arrest or help arrest offenders or persons
2) SELF DEFENSE AT COMMON LAW - s76 criminal justice and immigration act 2008
which case illustrates the use of public defense and the prevention of crime under s3 of the criminal law act 1976?
R V JONES - where protesters caused damage to a military base on the basis of preventing a crime of aggression - this was unsuccessful as aggression is not a crime
when is a defendant allowed to plead self-defense?
when two things are proven
- the use of any force was unnecessary or if some force was justifiable
- the actual degree of force was unreasonable
what do courts consider when discussing if the force was necessary ?
courts consider 3 issues when looking at the necessity of the force
- possibility of retreat
- imminent threat
- whether the defendant made a mistake that caused them to think their action was justified
explain the possibility of retreat
this is an issue that the courts look at when discussing the necessity of force where defendants would have to show that they were not wishing to fight and escape if they had the chance
what case challenged the view that defendant had to prove that they were not willing to fight
R V BIRD - court of appeal found it no necessary to sow reluctancy to fight
explain imminent threat
imminent threat is another issue that courts consider when discussing the necessity of force, imminent threat refers to the immediacy to the threat
what case demonstrates that there is no need to wait for the defendant to attack before they can use force?
R V BECKFORD - police shot a man who he thought was armed, this allowed a pre-emptive attack to be justifiable but is limited in some cases
what other cases discuss the idea of imminent threat?
- R V RASHFORD, stabbed the victim after argument attempted to claim it was an accident but was unsuccessful as the force was not necessary
- ATTORNEY GENERALS REFERENCE NO 2 1983 - shop keeper feared rioters which lead to him making petrol bombs and putting it under counter and was acquitted as this was justifiable
- R V COUSINS - cousins believed a contract was taken out on his life so made a threat on the man who he lived it to be, he relied on s 3 of the criminal law act 1957
what case was not successful in its attempted defense relating to an imminent threat
- R v RASHFORD - the stabbed victim in heart over the argument
is preparing for attack sufficient enough for a defense?
in some cases, for example, attorney generals reference no 2 - shopkeeper feared rioters so created petrol bombs
however, in other cases such as R V MALIK, it is not as successful
explain one of the 3 principles that the courts use to decide if force was necessary,- whether the defendant made a mistake that caused them to think that their actions were justified
when a defendant makes a mistake that leads the defendant to believe that there actions were justified, the courts need to assess the necessity of ds conduct example R V WILLIAMS
explain the case of R V WILLIAMS what is it linked to?
R V Williams is linked to a principle that is used to discuss the necessity of force in r v Williams the defendant thought that he saw a man robbing an old lady which ultimately leads in a physical altercation which resulted in his case being quashed as courts believe that the mistake only had to be honest to reasonable
what statute confirmes R V WILLIAMS
S 76(4) CRIMINAL JUSTICE AND IMMIGRATION ACT 2008 confirms R V WILLIAMS and s 76 A deals with household claims of self-defense
what does 2 76 A criminal justice and immigration act 2002 deal with?
claims of self-defense regarding households and when this is seen as grossly dissaproprotae the courts have to ask two questions
1 ) was the degree of force used by D grossly dissroporitiante in those circumstances as he believed them to be
2) if it was not was the degree of force reasonable in the circumstances he believed them to be which was established in R ON THE APPLICATION OF COLLINS V SECRETARY OF STATE
what case established the second principle of “if it was not was the degree of force reasonable in the circumstances he believed them to be “
R ON THE APPLICATION OF COLLINS V SECRETARY OF STATE
explain what is meant by the degree of force
degree of force refers to the courts having to prove that the use of force was reasonable and justified which uses both the subjective test and the objective established by the graham principles
what does the criminal justice and immigration act 2008 confirm?
the criminal justice and immigration act 20078 confirms that a mistake in the degree of force only needs to be honest not necessarily reasonable, if D uses excessive force then self defense will not be available eg in R V CLEG
which cases are used as examples of degree of force ?
- R V CLEGG, shot joyriders when they failed to stop
- R V MARTIN 2001 - SHOT TWO BURGALS AS THEY RAN AWAY shows excessive force
what are some evaluations of self defence
- there may be conflict with the human rights act 1998 article 2 , which states everyone’s rights shall be protected
self-defense does not allow the protection of property, eg R V MARTIN was seen as excessive force
- the rights of individuals to self-help should be regulated
what are some potential reforms
- some argue that self defense should be a partial defense instead of a complete defense especially where a defendant has used too much force
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