neccessity- self defence Flashcards
what is a necessity defence?
These defences suggest that the AR committed by the defendant was not exactly a conscious free choice.
It suggests that their actions were necessary to avoid them being harmed, or to avoid something worse happening.
This therefore suggest that MR was not the same as if they were deliberately committing the AR.
what are the 2 necessity defences?
Self defence
Duress
Self defence explain:
Self-defence is a complete defence and if successful, the defendant will be found not guilty.
It covers defending yourself, defending others and defending property.
This is set out in common law and statute law.
Common law- amended in Criminal Justice and Immigration Act 2008
Statutory law- s3(1) of the criminal law act 1967- self-defence can be used in the prevention of a crime or in assisting in a lawful arrest.
This permits the use of ‘such force as is reasonable in the circumstances’.
Criminal Justice and Immigration act 1967 rules for self-defence:
Was it necessary to use any degree of force?
If so, was the degree of force actually used proportionate or reasonable (to the harm threatened or the risk to be averted)?
answer:
If the degree of force was unreasonable then there is no question of proportionality as the force cannot be reasonable.
If it was reasonable but not proportionate, then the force was not reasonable in these circumstances.
how did they determine it was necessary to use some force?
This will be judged according to the facts that the defendant believes at the time- subjective
This can still be the case if the defendant is mistaken.
R v Gladstone Williams (1987)
D was on a bus when he saw what he thought was a man assaulting a youth. In fact, the man was trying to arrest the youth for mugging an old lady. D got off the bus and asked what was happening. The man said that he was a police officer arresting the youth, but when D asked him to show his police ID card he could not do so. There was then a struggle between D and the man in which the man was injured. D was convicted of ABH s 47 OAPA 1861 after the judge directed the jury that D only had a defence if his mistake was a reasonable one.
The Court of Appeal quashed his conviction because the jury should have been told that if they thought the mistake was genuine they should judge the defendant according to his genuine, mistaken, view of the facts, regardless of whether this mistake was reasonable or unreasonable.
Legal principle: the mistake made by the defendant was a genuine mistake
s76 of the Criminal Justice and Immigration Act 2008: Gladstone and Beckford
(3) The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances D believed them to be…
(4) If D claims to have held a particular belief as regards the existence of any circumstance-
The reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
If it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not-
It was mistaken, or
(if it was mistaken) the mistake was a reasonable one to make.
Beckford v The Queen (1988)
D was a police officer in Jamaica and was issued with a gun and ammunition and sent with other armed officers to a house. According to D, a report had been received from a woman that her brother was terrorising her mother with a gun. D said that on arriving at the house, he saw a man run from the back door with an object which appeared to be a firearm. D stated that the man fired at the police and, in response to this, he fired back, killing the man. No gun was found. The trial judge directed the jury as follows:
“A man who is attacked in circumstances where he reasonably believes his life to be in danger or that is in danger of serious bodily injury may use such force as on reasonable grounds he thinks necessary in order to resist the attack and if in using such force he kills his assailant he is not guilty of any crime even if the killing is intentional.”
D was convicted of murder (which carries the death penalty in Jamaica). He appealed, arguing the judge was wrong to direct that the mistake needed to be reasonably held. His appeal was allowed and the conviction was quashed. The Privy Council decided that the test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.
Legal principle: Followed the ruling of Gladstone that the mistake made by the defendant was a genuine mistake.
intoxicated mistake:
S76(5) makes it clear that if the mistake was made because of voluntarily intoxication then they cannot rely on the defence of mistake.
For example: voluntary intoxication leads to the belief that you are being attacked and the defendant lashes out to defend themselves but assaults a passerby in the process. The belief may be genuine, but the mistake was caused by voluntary intoxication.
R v Seun Oye (2013)
D, who had no previous convictions, spontaneously attacked police in the staff area of a coffee shop and later in the cells. He was charged with s 20 OAPA 1861 and two counts of affray contrary to s 3 of the Public Order Act 1986. In his defence he relied on insanity and self-defence, claiming that he was being threatened and “rushed’ by evil spirits and had to defend himself. Two psychiatric experts agreed that D was legally insane.
However, as set out in Chapter 11, insanity is a matter for the jury to decide, and they rejected it leaving self-defence, which again the jury rejected.
The Crown accepted at trial that the first, subjective limb of self-defence (D’s belief that circumstances exist that justify force) was satisfied, meaning there was no issue that D believed he felt threatened by evil spirits.
The problems were in relation to the second, objective, limb. D argued that the objective limb - whether the force used was proportionate to the threat - must have been satisfied, given the nature of the threat. He was, he claimed, justified in attacking the police officers.
The Court of Appeal was not impressed by this argument, because ‘it could mean that the more insanely deluded a person may be in using violence in purported self-defence, the more likely that an entire acquittal may result’ and the courts would be unable to impose any hospital or supervision order on a dangerous individual.
R v Press and Thompson (2013)
The court of appeal applied the same principles to PTSD suffered by two serving soldiers. It was alleged they had launched an unprovoked and vicious assault on an innocent victim in a fast food shop. While the PTSD might cause them to misapprehend whether defensive action is necessary, they still need to be objective about the degree of force.
R v Bird (1986)
D’s ex-boyfriend turned up at her birthday party with his new girlfriend. There was an argument and D asked him to leave. He did so but later returned and there was another argument. D poured a drink over him and he slapped her and pinned her against a wall. D punched him in the face, claiming that she had forgotten that she had a glass in her hand. The glass broke, causing him to lose an eye. She was charged with wounding under s20 OAPA 1861 but she argued she acted in self-defence.
The Court of Appeal quashed her conviction. It ruled that while withdrawing or showing an unwillingness to fight is good evidence that the defendant is acting reasonably and in good faith, there is no requirement to show an unwillingness to retreat. This principle is now set out in s 76(6) of the Criminal Justice and Immigration Act 2008.
is there a duty to retreat?
S76(6a) makes it clear that a person is not under any duty to retreat when acting.
But the court might consider the possibility that they could have retreated but didn’t, as a relevant factor.
what if the defendent was the aggressor?
Even if the defendant was the initial aggressor, they can use force if the victim’s response was wholly disproportionate and was seriously threatening.
Providing this was not the defendants aim all along.
R v Rashford (2005)
D sought out V, intending to attack him in revenge for an earlier dispute, but V and his friends responded out of proportion to D’s aggression. At this point, D had to switch from aggression to defence. The Court of Appeal held that a defendant will only lose the defence by being the aggressor throughout the situation.
The question of when a defendant is entitled to rely on self-defence depends on whether he or she feared that he or she was in immediate danger from which he or she had no other means of escape, and if the violence he or she used was no more than appeared necessary to preserve his or her own life or protect him- or herself from serious injury.
On the facts, the jury’s decision to convict was not unsafe.
