Self defence Flashcards
what is self-defence?
common law, covers not only actions which are needed to defend oneself from an attack but also actions taken to defend another person.
s76 CJIA 2008
question for Degree of force?
was the force used reasonable in the circumstances as the D supposed them to be?
how is it decided if force is reasonable?
defece allows that person who is facing attack is under stress and can;t be expected to calculate exact amount of force needed in circumstance.
if there is evidence that person “honestly and instinctively” thought level of force was reasonable, this provides strong evidence that the defensive action was reasonable in the circumstance.
if force is used after danger from the assailant is over, is there a defence?
No
case showing once danger is over, its highly unlikely that force will be considered necessary, so no defence?
R v Hussain (2010), all danger from attack was over so no defense for force.
householder cases and force?
degree of force will not be regarded as reasonable only where it was ‘grossly disproportionate’
what are the 3 requirements for householder cases?
- force must be used by D while in or partly in a building that is a dwelling
- D must not be a trespasser
- D must have believed D to be a trespasser
R v Martin and householder cases
D shot 2 burglars who’d broken into his farm house, one died, D found guilty of murder, reduced to manslaughter
R v Gladstone Williams and mistaken force in self defence
D should be judged according to their genuine mistaken view of the facts regardless of whether mistake was foreseeable or not.
(D thought man was assaulting a youth but was actually police trying to arrest)
drunken mistake
D cannot rely on intoxicated mistake due to D being voluntarily intoxicated
pre-emptive strike
someone who fears an attack can make preparations to defend themselves, this is so even if preparations involves breaches of the law.
Attorney-General’s Reference (1984)
R v Bird
withdrawing from attack and showing unwillingness to fight is good evidence D is acting reasonably and in good faith
but there is no absolute requirement to show an unwillingness to retreat
R v Clegg
last shot fired when car had gone past, killing passenger, could not use self defence as there was not danger when force used = excessive force, conviction for murder upheld
R v Oye
when deciding whether D used reasonable force, inappropriate to take into account whether D was suffering from psychiatric condition
