Self-Defence

Question 1

what is the definition of self defence?

Answer 1

person can use force as is reasonable in the circumstances to defend himself or another or his property

1. was there necessity of the force
2. was the force used by d reasonable in the circumstances as d perceived them

-complete aquittal

Question 2

what is the first step of self defence?

Answer 2

• must be necessary to use the force
• subjective test-must be necessary in the circumstances which exist or which d genuinely believed existed
• (S.76(3) CJ&IA 2008)-judges on facts as he genuinely perceives them to be
  
  • mistaken beliefs-(Gladstone Williams)
• intoxication
  
  • (S.76(5) CJIA 2008)-if d voluntarily intoxicated cannot rely on mistaken belief
  • (O’Grady)
• defence can be used even if attack has not taken place yet providing it is imminent
  
  • (Bird)-does not have to wait for an attack
  • (Hitchens)-aimed at innocent third party

Question 3

what is the second step of self defence?

Answer 3

reasonableness of force

-(S.76(6) CJAIA 2008)-degree of force used by d will not be considered as reasonable if it was disproportionate in the circumstances as d believed them to be

• (S.76(7) CJAIA 2008)-guidance on reasonable of force:
  
  • person may not be able to weigh to a nicety the exact measure of any necessary action; and
  • evidence of d having only done what he honestly and instinctively thought was necessary for a legitimate purpose
  • (Palmer)-cannot weigh to a nicety the exact measure of his necessary defensive action
• excessive force
  
  • (Martin)-if force excessive it will be unreasonable and defence will fail
  • (Clegg)-threat must still be present for defence