Self Defence Flashcards
What is a defence (simple)?
An excuse to why you did a crime
List the ‘General Defences’
self-defence,
duress by threats,
duress of circumstances,
necessity,
consent.
What is the definition of self-defence (General Defences)
Defending oneself from attack and defence of another.
Use of some force (according to D) must be necessary to apply self-defence
s 3(1) Criminal Law Act 1967.
Criminal justice and Immigration Act 2008 sets out what reasonable force is:
(Self-defence)
Allows for the fact that person who is facing attack may not be aware of the level of force
they are using if they are using it ‘honestly and instinctively’.
*However, if the danger from the attacker is over and then excessive force is used, there is no defence – R v Hussain (2010) *
The Crime and Courts Act 2013 on self-defence in a household:
gives a wider defence (‘more force’) to householders provided that D is in, or partly in the building that is a dwelling, they aren’t a trespasser and must have believed that V was a trespasser.
Householders aren’t allowed to use any level of force they choose s 76(5a). It’s for a jury to decide what was reasonable – Collins v Secretary of State for Justice (2016).
What is the law of ‘mistakes’ in self defence?
The defendant must also be judged by the facts, regardless of whether they have made a mistake – reasonable or unreasonable – R v Gladstone Williams (1984).
A drunken mistake or one made by D when voluntarily intoxicated cannot be taken into account.
What are the rules on use of force in self defence for a jury to decide?
• Self-defence/defence of another/prevention of crime are full defences.
• Force must be reasonable.
• Circumstances must be genuinely believed by D to have been the
situation, reasonable or unreasonable.
• Personality disorder cannot be taken into account.
• Amount of force must not be excessive.
Evaluation of self defence
IS FORCE NECESSARY? - R v Bird (1985). (It depends on the circumstances - unclear…) —R v Bird (1985). - as long as it’s for a legitimate purpose, the victim is not under a duty to retreat, but where degree of force is concerned, it can be.
DEFENCE IS TOO GENEROUS - we need to balance the rights of a defendant who has made an honest mistake with an innocent victim who has been mistakenly assaulted.
PREEMPTIVE STRIKE - the law appears to be clear that somebody who fears an attack has the right to make ‘preparations’ to defend themselves – Attorney-General’s Reference (No.2 of 1983) (1984). unclear
EXCESSIVE FORCE - whilst the level of force where householders are concerned is more, it is less when force is used to defend oneself outside of the home. This can be quite harsh when somebody kills another whilst claiming to act in self-defence – R v Clegg (1995), R v Martin (Anthony)(2002).
RELEVANCE OF D’S CHARACTERISTIC -R v Cairns (2005), said it was not appropriate to take into account that D was suffering from a psychiatric condition. The same was true in Oye (2013). The reason for all of this is that since self-defence is usually raised in cases of minor assault, this would not be appropriate.
Overview of self defence
Degree of force used must be reasonable. Doing what the person honestly and instinctively thought was necessary for a legitimate purpose
Overview of self defence in householder cases
Degree of force must not be ‘grossly disproportionate’
Overview of Mistaken use of force (self defence)
If mistake is made because D is intoxicated, then they cannot rely on this mistake
Should D retreat? (Self defence)
D is not under a duty to retreat when acting for a legitimate purpose
But the possibility that D could have retreated is considered when deciding whether the degree of force was reasonable.
