Self-Defence Flashcards
Are pre-emptive strikes allowed? Give a case to support this.
Yes. As seen in R v. Beckford.
Are threats of violence permitted? Give a case to support his?
Yes. As seen in R v. Cousins.
Is the defendant allowed to prepare for an attack? Give a case to support this.
Yes. As seen in the Attorney General’s Reference No. 2 of 1983.
Is there a duty to retreat? Give a case to support this.
There is no duty to retreat. As seen in R v. Bird.
What does s.76(3) of the Criminal Justice and Immigration Act 2008 state?
States that the question as to whether the force was reasonable is for the D. to decide.
What does s.76(7) of the Criminal Justice and Immigration Act 2008 state?
Recognises the D. may not have time to weigh to a nicety their actions.
What did R v. Martin establish?
Mental characteristics will not be considered when evaluating the amount of force.
How much force can homeowners use and under what statute?
Can use any amount of force provided it does not exceed grossly disproportionate. According to s.43 of the Crime and Courts Act 2013.
If the use of force was excessive, what verdict will the jury return?
A verdict of the full offence. As seen in R v. Clegg.
Can the D. make an honest mistake?
Yes, the D. will be judged on the facts as he believed them to be. As seen in R v. Williams (Gladstone).
What does s.76(5) of the Criminal Justice and Immigration Act 2008 state?
Self-defence will be void if attributable to voluntary intoxication as seen in R v. O’Grady.
Give two advantages of self-defence.
1) . Lenient in ‘spur of the moment’ decisions as the D. is able to strike the first blow - established in R v. Beckford - thus the D. does not have to wait to be attacked which would defeat the object of self-defence - however, the D. may have intended to cause injury - if the result was death there is no testimony to contradict the D’s - allowing for potential abuses of this defence - defence should be considered with caution - potentially a lower standard of proof - allow for greater scrutiny.
2) Recognises the role of judges in determining the defence as s.76(8) allows them to make new principles so long as the do not contradict s.76 - means the law can be amended in line with social change and quickly - however as with common law - undemocratic and made by unrepresentative few - e.g. R v. Martin - no to mental illness - committees in Parliament would consider this not inclusive.
Give two disadvantages of the law of self-defence.
1) . Whilst homeowners have a greater threshold under s.43 C&CA 2013 has proved controversial as it undermines human rights - e.g. Collins v. Justice Secretary - violation of Article 2 - however the collective justice perspective makes a compelling argument - should allow homeowners to protect their families - HC in Collins made sure s.43 was not a ‘carte blanche’ use of force and was not a ‘license to kill’ - preventing s.43 being somewhat of a loophole.
2) . The use of juries to determine whether the defence is allowed, from a substantive justice perspective, is beneficial as it ensures collective and holistic accounting of all d’s circumstances however means the law may be inconsistent as a different jury may produce a different conclusion - e.g. R v. McGrath jury found manslaughter when d. killed her boyfriend after an argument - a different jury may have allowed the defence because she was a vulnerable girl under attack - a defence governed entirely by statute would be more consistent.
