ND: Self-defence Flashcards
R v Bird
Duty to retreat
Evidence of retreat is helpful but not essential
R v Williams
Mistaken use
An honest but mistaken belied will allow the defence to operate
R v Clegg
Excessive force
D used a greater degree of force than was necessary in the circumstances. He was guilty of murder.
R v O’Grady
Mistaken use
A mistake of fact while intoxicated will prevent the application of the defence
A-G Ref (No2 of 1983)
Pre-emptive strike
A person is entitled to make preparations in self-defence for a future attack against them
R v Rashford
Pre-emptive strike
Act of revenge doesn’t rule out the possibility of the defence
R v Deana
Pre-emptive strike
A person may be justified in initiating the physical interaction/use of force to protect themselves or prevent crime
R v Martin
Excessive force
It wasn’t self-defence as the danger of the situation wasn’t ongoing
R v Hussain
Excessive force
Not self-defence as violence was used in retribution
R v Oye
D’s belief
Psychological characteristics are irrelevant, self-defence was rejected but an insanity plea was allowed
R v Taj
Mistaken use
CoA rejected the availability of the defence where mistaken self-defence was while intoxicated
Self-defence plan
Definition - Self-defence is a common law defence that covers actions needed to defend oneself and/or others from attack, under s3 Criminal Law Act 1967.
The defence of prevention of crime is defined: ‘a person may use such force as is reasonable in the circumstances in the prevention of crime’. (tests and laws for this are the same)
Basic principle in R v Palmer - ‘It is good law and good sense that he may [defend himself when attacked], but only do, what is reasonably necessary’
Law - The operation of the defence can be provided through s76 of Criminal Justice and Immigration Act 2008, and requires the D to use ‘reasonable’ force when necessary in the circumstances.
Necessity of force:
Subjective test - based on the D’s genuine belief in those precise circumstances. D’s mistaken use of force can still be used to plead the defence - R v Williams, R v O’Grady, R v Oye, R v Taj
- Pre-emptive strike is possible and allowable, as D may have been preparing for an attack/to avoid threats and there’s no duty to retreat
Apply…..
Reasonable degree of force:
Lord Morris in R v Palmer: ‘in a moment of unexpected anguish’, D may not have been able to ‘weigh to a nicety the exact measure of his defensive action’
Degree of force must be reasonable, when the danger is still ongoing, to ensure the defence isn’t disproportionately applied within cases attempting to reduce charges
Force must not be excessive, therefore can only be used in threat of danger and not in retribution. This ensures the full defence is fair and reasonable. - R v Clegg, R v Martin, R v Hussain
Apply……
Householders against intruders:
The statement made by Crown Prosecution Service and other is unequivocal: a householder must have acted honestly and instinctively and thought it necessary.
S76 of Criminal Justice and Immigration Act 2008 allows householders to use ‘disproportionate force’ in self-defence. This is judged by the facts of the case, but the degree if force won’t be reasonable where the D’s actions were seen as grossly disproportionate.
Apply….
Pre-emptive strike:
In the right circumstances, a person can hit another person first in an act of self-defence rather than waiting to be attacked - A-G Ref (No2 of 1983), R v Deana
Failure to retreat and avoid conflict does not preclude the application of the defence. The test for reasonableness must be considered, but it isn’t necessary for the D to retreat - R v Bird
The act of revenge doesn’t rule out the possibility of self-defence but if a person starts the violence, they cannot rely upon the defence - R v Rashford
Apply….
Conclusion - if successful, D can be fully acquitted of all charges and absolved of all liability.
