Necessity defences - Self-defence and prevention of crime Flashcards
s 76(3) Criminal Justice Act and immigration act 2008 - important
Whether D’s use of any force was necessary is tested subjectively according to D’s beliefs at the time, whether or not this belief was mistaken or reasonable
s 76(6) Criminal Justice Act and immigration act 2008 - important
Whether the force used by D was proportionate in the circumstances is tested objectively against whether the reasonable person would think its proportionate
S3 Criminal Law Act (1967) - important
It is lawful to use reasonable force to prevent a crime or to assist in the lawful arrest of an offender.
s 76(5a) Criminal Justice Act and immigration act 2008 - important
Where D is a householder (in their own property), the defence only fails if the force used is ‘grossly disproportionate’
R v Williams (1983) - important
Whether D’s use of any force was necessary is tested subjectively according to D’s beliefs at the time, whether or not this mistake was mistaken or reasonable
s 76(5) Criminal Justice Act and immigration act 2008 - important
D cannot rely on their mistaken belief that force was necessary if they made that due to voluntary intoxication
R v Bird (1986) - important
If D is being attacked, they are not under a duty to retreat before using force to defend themselves. But an attempt or willingness to retreat may be evidence that the force used was proportionate.
R v Clegg (1995) - important
Force is disproportionate if it is applied or continued after the threat has passed.
R V Secretary of State for Justice (2016) - important
In householder cases, the jury can consider issues such as the shock of an intruder, the time of day or the presence of vulnerable persons in the property to decide if the force used was ‘grossly disproportionate’
R v Oye (2013)
If D is suffering from a mental illness that causes them to mistakenly believe that force was necessary, they might meet the first subjective test but their illness is not relevant to the second, objective, test.
R v Press and Thompson (2013)
If D is suffering from a mental illness that causes them to mistakenly believe that force was necessary, they might meet the first subjective test but their illness is not relevant to the second, objective, test.
R v Rashford (2005)
If D is the initial aggressor and V reacts proportionately, D cannot rely on Self-defence, however if V reacts disproportionately to D’s attack, the defence is available
