L5: Public-Private Defence/Diff between Assault and Battery Flashcards
Application Practice
Private Defence
-Common law- a person has a defence if they are defending himself or another from an attack
-s.76 CJ/IA 2008- Enacts the law as it existed at common law, but in doing so, it has added much needed clarity to the law concerning the operation of the defence
-It can be relied upon in relation to any offence
Key Case for private defence
Oraki v CPS (2018)
Scope of private defence
-Protection of oneself
-Protection of another
-Protection of property
What are the four elements of private defence ?
-The victim must pose a threat
-The threat must be unjustified
-The use of force must be necessary
- The amount of force used must be reasonable
Assessing Necessity of Force
-The necessity of the force is judged from the defendant’s perspective so the key question to ask is
“did the defendant believe he needed to use the force to protect himself/someone else/property?”
Necessity of Force- Mistaken Belief
A defendant who mistakenly believe that there is a need to use force can still rely on the private defence provided that the mistaken belief was honestly held.
Key Case for Mistaken Belief
R v Williams (Gladstone) (1987)
Duty to Retreat
Defendant doesn’t have a duty to retreat
What are the key authorities ?
-S.76(6A) CJ/IA 2008
-R v Bird (1985)
Pre-emptive Force
General Rule:
-A defendant can use pre-emptive force to stop an attack from happening if they genuinely believe that they are being attacked.
-In Beckford v Queen (1998), Lord Griffiths stated that “a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive attack.”
What is the exception for pre-emptive force ?
A person can not use pre-emptive strike (and claim private defence) if they are voluntary intoxicated and make a mistake about the situation.
Fourth element of private defence
The amount of force used must be reasonable
Assessing the Reasonableness of the Amount of Force used:
-Although it is the defendant who determines whether the use of the force is necessary, the reasonableness of the level of force is assessed objectively.
-Test: Whether a reasonable person who say that the level of force was reasonable. (Oye (2013); Martin (2002))
Non-Householder cases
The force used must be no more than necessary. It must be proportionate to the threat.
Householder Cases
As per Section 76(5) of the Criminal Justice and Immigration Act 2008, the level of force used by the defendant will only be unreasonable if it is “grossly disproportionate”.
