PAPER 1: Evaluation on Self Defence & Consent [COMPLETE] Flashcards
State the 4 possible defences for self defence
- Is force necessary?
- The defence is too generous to the defendant
- Pre-emptive strike
Discuss ‘Is force necessary’ as a point of reform the self defence.
In many cases it is straightforward to see whether force is necessary to the victim.
For example, if the facts are that the victim had a knife in their hand and came towards the defendant saying ‘I’m going to slash you to pieces’, it is quite clear that force is necessary in self-defence in this situation.
However, there can be problems deciding when force is necessary. In particular, does a victim have to retreat before using force as in R v Bird (1985) below? Section 76(6A) (JIA 2008 now makes it clear that a person is not under a duty to retreat when acting for a legitimate purpose. But the possibility that the defendant could have retreated is to be considered as a relevant factor in deciding whether the degree of force was necessary.
Section 76 CJIA 2008 makes it clear that, provided the mistake was not made due to intoxication, then D can rely on their mistake.
Also, it can be said that a householder is morally justified in using force to defend him or herself, others in the house and their property against an intruder. But is a householder morally justified in using any amount of force? Is a householder acting wrongfully in defending him or herself or his/her property, whatever the force used? As set out in 8.1.1 above, Section 76(5A) now states that in a householder case the degree of force will not be regarded as reasonable only where it was ‘grossly disproportionate’. The law now appears to support the view that a householder has a moral right to defend him or herself or his/her property using force, but only to a certain extent.
Discuss ‘The defence is too generous to the defendent’ as a point of reform the self defence.
The defence is available even where the mistake the defendant made is unreasonable. Is it too generous to judge defendants on the basis of facts they unreasonably believe to be true?
There’s two sides to consider here:
If the defence is not allowed where the defendant honestly believed they were about to be attacked, then the defendant is at risk of being imprisoned when s/he really was not at fault.
Against this, there is the need to protect the innocent victim whom the defendant has assaulted due to a mistaken belief.
Discuss ‘pre-emptive strike’ as a point of reform the self defence.
Do defendants have to wait until they are attacked before they can use force? The law appears to be clear that they can act to prevent force. It is not necessary for an attack to have started. This appears to be a sensible rule, since it would be ridiculous if people had to wait until they were stabbed or shot before being allowed to defend themselves .
In Attorney-General’s Reference (No. 2 of 1983) (1984) it was held that someone who fears an attack can make preparations to defend him/herself (petrol bombs). This is even if the preparations involve breaches of the law - which may be considered contradictory.
Discuss ‘excessive force’ as a point of reform the self defence.
As set out above, an issue is where a defendant uses excessive force in self-defence. It can be said to be morally right that a person should be able to use force to defend him/herself and/or his or her property. This should apply whether the person who uses force is a householder or acting outside of a house.
However, limits have to be set on what force can be used to prevent people from taking the law into their own hands. If the limits are exceeded then self-defence cannot be used and the person who uses force will be at fault. However, the level of fault can be taken into account by the judge when passing sentence. This can be particularly unfair for a person who kills another while claiming to act in self-defence. If convicted, they must be given a life sentence. However, the level of their fault can be reflected in the tariff period. This was seen in the cases of R v Clegg (1995)
Discuss ‘Relevance of D’s characteristics’ as a point of reform the self defence.
Another point is whether D’s characteristics can be taken into account in deciding if D thought that he or she needed to defend him/herself.
In R v Martin, the Court of Appeal held that psychiatric evidence that D had a condition entailing that he perceived much greater danger than the average person was not relevant to the question of whether D had used reasonable force. One of the reasons for this decision was that self-defence is usually raised in cases of minor assault and it would be ‘wholly disproportionate to encourage medical disputes in cases of that sort’.
Also in R v Cairns (2005) the Court of Appeal followed the decision in Martin (2002) and held that when deciding whether D had used reasonable force in self-defence, it was not appropriate to take into account whether D was suffering from a psychiatric condition (such as paranoid schizophrenia) which may have caused him to have delusions that he was about to be attacked.
In particular, s 76(6) of the Act requires that the amount of force used in the circumstances as the defendant believed them to be should be reasonable. Also the Crime and Courts Act 2013 now gives a wider defence to householders where an intruder enters their property. They can use the defence of self-defence provided that the degree of force was not ‘grossly disproportionate’. For other cases, the degree of force used in self-defence must not be ‘disproportionate’. However, again it is probable that Martin would not have been able to use the defence, as shooting someone in the back is likely to be regarded as ‘grossly disproportionate’.
State the 4 possible defences for self defence
Policy considerations
Discuss ‘horseplay and consent’ when talking about consent.
Another area of law where the courts are prepared to accept consent as a defence is in what is called ‘horseplay’. That is where those involved in a ‘game’ use ‘friendly’ violence to each other. Even where such behaviour results in serious injury, the courts have ruled that consent can be a defence. This is the legal basis that the aggressor does not have the mens rea for assault. Even more surprisingly, the courts have held that honest belief in consent provides a defence although the victim in fact has not consented. This is shown in Jones (1986) where serious injuries were caused to the victims in both cases.
Yet the courts accepted that the defence of consent was available, even though there was a mistaken belief in the existence of consent. When these cases are contrasted with Brown (1994) and Emmett (1999), there appear to be further inconsistencies in the law. Why should real consent be refused as a defence for disapproved types of sexual behaviour and yet allowed for horseplay which results in serious injury, even where the victim was not actually consenting?
policy considerartions
One view of these conflicting decisions is that the courts are prepared to condone acts where the parties are consenting adult heterosexuals (and the injuries are not too serious), but not where the parties are consenting adult homosexuals (as in Brown). There are also contradictory decisions within cases involving heterosexual couples. This was shown by R v Emmett (1999). Case study R v Emmett (1999) ‘High-risk’ sexual activity between D and his partner (later his wife) had resulted in the woman suffering haemorrhages to her eyes on one occasion and burns to her breast on another occasion. She had to consult her doctor on both occasions. D was charged with ABH s 47 OAPA 1861.The Court of Appeal held that her consent to the injuries could not be a defence where the harm caused is more than ‘transient or trivial’ injury. This case contrasts with R v Wilson (1996), where consent was allowed as a defence even though the wife had needed medical attention. It could be said, in the cases when consent could not be used, that the courts are trying to impose their own moral values. Public policy issues were important considerations in the decision of the House of Lords in Brown. In the judgment in Brown it was said that ‘In principle there is a difference between violence which is incidental and violence which is inflicted for the indulgence of cruelty. In a civilised society, cruelty should not be tolerated.’ This was a main reason for the House of Lords’ decision that victims could not consent to injuries caused by the deliberate infliction of cruelty. The Law Lords also felt that the violence involved the degradation of the victims. They were treated in a humiliating and uncaring way. In addition, there was also no way of knowing what injuries might result to the victim from the conduct. All these points meant that, in the view of the courts, it was in the public interest, and morally right, for the law to interfere with the autonomy and freedom of individuals to do what they chose, especially in private
consent and euthanisia
No one can consent to another person assisting in bringing about their own death. This means that if a terminally ill patient wishes to die, they must take their own life. If anyone helps bring about the death they will face a charge of murder or assisting suicide. This was decided in R v OPP (2001). This decision leads to the situation where the law recognises the personal autonomy of a person being entitled to take their own life and not committing any crime by trying to do so. Case study R (on the application of Pretty) v DPP {2001) Mrs Pretty was suffering from motor neurone disease. As a result she was becoming more and more incapable of movement. She knew that eventually she would suffocate to death. She wanted her husband to be able to assist her to take her own life when she felt that her life had become intolerable. She applied to the courts for a judicial declaration that, if her husband assisted her to commit suicide, he would not be prosecuted. The House of Lords refused the declaration on the basis that any assistance of the husband would be a criminal act. But in cases where people who wish to commit suicide are physically incapable of doing so, then they are denied their wishes as anyone who helps them will be guilty of an offence. There have been several attempts to challenge this rule including Tony Nicklinson in 2014. In this and other cases that have come to court it has been said that this is an issue for Parliament to consider. However, at the time of writing, Parliament has been unwilling to legislate, despite there being broad public support for their doing so. Case study R (on the application of Nicklinson and another) v Ministry of Justice 2014 In 2005 Tony Nicklinson suffered a severe stroke and became paralysed from the neck down. He described his life following the stroke as a ‘living nightmare’. He wanted to end his life but was unable to commit suicide without assistance, which was an offence under s 2 of the Suicide Act 1961. He applied for a declaration that either: • It would be legal for a doctor to assist in his suicide; or • The present legal regime concerning assisted suicide is incompatible with Article 8 of the European Convention on Human Rights (Right to respect for private and family life). The case was appealed to the Supreme Court (though Mr Nicklinson refused food and died during the course of the proceedings). The courts refused his request for a declaration saying that this issue is a matter for Parliament (not the courts) to legislate on. The request for a declaration of incompatibility was also refused as the court considered that the issue was within the UK’s margin of appreciation, and was therefore a question for the UK to decide.
