Self-Defence

Question 1

What does this defence cover?

Answer 1

This defence covers not only actions which are needed to defend oneself from an attack, but also actions taken to defend another person.

Question 2

What defences are these?

Answer 2

The defences of self-defence and defence of another are common law defences which justify the defendant’s actions to a crime.

Question 3

What is the statutory defence also?

Answer 3

In addition, there is a statutory defence of prevention of crime under S. 3(1) of the Criminal Law Act 1967 which allows a person to use reasonable force, based on the circumstances of the event, to prevent crime.

Question 4

There are two main points to discuss when determining the use of self-defence:

Answer 4

Was the use of force necessary? If it was, then

Was the force used reasonable in the circumstances?

Question 5

Who are these questions left to?

Answer 5

The jury.

Question 6

Section 6A of the Criminal Justice and Immigration Act 2008 (as amended by S. 148 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012) makes it clear that…

Answer 6

that a person is not under a duty to retreat when acting for a legitimate purpose.

Question 7

However, the possibility that the person could have retreated is to be considered as what?

Answer 7

as a relevant factor in deciding whether the degree of force was necessary.

Question 8

If the attacker is running away then is it likely the degree of force would be considered necessary? Give a case.

Answer 8

No.
R v Hussain and Another [2010]

Question 9

Following the ruling in R v Hussain the courts will now consider four key issues to determine whether the force used was necessary under the circumstances, what are they?

Answer 9

Whether the person could have retreated from the situation (see Hussain and Another);

Whether the threat was imminent;

The fact that force can be used against a third party to prevent crime; and

Whether the defendant made some mistake which caused him to think the action was justified.

Question 10

A defendant will only be justified in reacting to a threat which is classed as?

Answer 10

Which is imminent.

Question 11

Does a person have to wait before they are hit before hitting?

Answer 11

NO!

Question 12

The courts have tried to balance the issue of imminence through case law into two contrasting cases, what are these?

Answer 12

Attorney-General’s Reference No 2 of 1983) [1984]; and

Malnik v DPP [1989]

Question 13

Attorney-General’s Reference (No 2 of 1983) [1984]

Answer 13

The defence could be allowed for offences based on possession in preparation of attacks provided the possession ceases when the danger of attack is no longer imminent.

Question 14

Malnik v DPP [1989]

Answer 14

The courts pointed out that the defendant has actually created the dangerous situation by choosing to go to the man’s house.

Question 15

What does the ruling in A-G Reference (No2 of 1983) allow?

Answer 15

For the defendant to have a pre-emptive strike to defend themselves.

Question 16

Where is the pre-emptive strike limited? Give a case.

Answer 16

This is restricted where the defendant creates the dangerous situation, as seen in Malnik v DPP.

Question 17

Explain R v Keane case and Malnik v DPP.

Answer 17

Exception to that rule.

Self-defence may arise in the case of an original aggressor but only where the violence offered by the victim was so out of proportion to what the original aggressor did that in effect the roles were reversed.

R v Keane [2010]

Question 18

The defence of self-defence can succeed if the defendant has used force towards the victim to prevent a third party from committing a crime:

E.g. A defendant may knock a set of car keys out of the victim’s hand to prevent the victim from giving those keys to a drunk driver.

Answer 18

R v Hichens [2011]

Question 19

Where the D makes a genuine mistake, what must the jury decide?

Answer 19

whether force was necessary in the circumstances that the defendant honestly believed existed.

The jury have to decide if the defendant honestly believed that they were being threatened.

If they decide that the defendant did believe it then the defence of self-defence can be used.

Question 20

Give a case for necessary- R v Gladstone Williams

A mistake.

Answer 20

The defendant was on a bus when he saw what he thought was a man assaulting a youth. In fact, it was a man trying to arrest a youth for mugging an old lady. The defendant got off the bus and asked what was happening. The man said he was a police officer and was arresting the youth, but when the defendant asked the officer to produce his warrant card the officer said he could not do so. There was a struggle between the defendant and the police officer, and the officer was injured. The defendant was convicted of assault after the trial judge directed the jury that the defendant only had a defence if his mistake was a reasonable one. The Court of Appeal quashed the conviction on appeal because the jury should have been told that if the mistake was genuine then the defendant should be judged according to his genuine mistake in view of the facts, regardless of whether it was reasonable or unreasonable.

Question 21

What does S. 76 of the Criminal Justice and Immigration Act 2008 now provide?

Answer 21

provides the following legislation regarding self-defence and mistake:

Question 22

S. 76(3)

Answer 22

The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be…

Question 23

S.76(4)

Answer 23

– if D claims to have held a particular belief as regards the existence of any circumstances –
The reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it; but
If it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not –
It was mistaken; or
(if it was mistaken) the mistake was a reasonable one to have made.

Question 24

For mistake what will be D be judged on for a mistake?

Answer 24

The defendant will be judged based on what they believed the facts to be, even if the mistake is unreasonable.

Question 25

What does Section 76(5) of the Criminal Justice and Immigration Act 2008 say?

Answer 25

makes it clear that a defendant cannot rely on any mistaken belief if the mistake is made due to the defendant being voluntarily intoxicated.

Question 26

What did O’Grady establish? Give another case.

Answer 26

If the defendant made the mistake because he had voluntarily got drunk, or had taken drugs, and makes a mistake because of his intoxicated state, then he cannot rely on his mistaken belief.
See R v O’Connor [1991]

Question 27

What did O’Grady establish? Give another case.

Answer 27

If the defendant made the mistake because he had voluntarily got drunk, or had taken drugs, and makes a mistake because of his intoxicated state, then he cannot rely on his mistaken belief.
See R v O’Connor [1991]

Question 28

When can the defence only succeed?

Answer 28

If the D used reasonable force.

Question 29

What does S.76(6) state?

Answer 29

the degree of force used by the defendant is not to be regarded as having been reasonable in the circumstances as the defendant believed them to be if it was disproportionate in those circumstances.”

Question 30

Who decides if the force was reasonable?

Answer 30

The jury.

Question 31

What must the jury do to see if it is reasonable?

Answer 31

To do so they must balance the amount of force used against the harm the accused sought to prevent.

Question 32

What does R v Martin (Antony) tell us.

Answer 32

In the case of R v Martin (Antony) [2001] the defendant had been entitled to use force, but on the facts, he had made a mistake as to the amount of force used in the situation.

In the law if the defendant uses excessive force, more force than necessary, the defence will fail.

Question 33

So to clarify, if the D uses excessive force which is more than necessary, then?

Answer 33

The defence will fail.

Question 34

What is S.76(3) of the objective test for reasonable force under the circumstances?

Answer 34

S. 76(3) - The question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be…

Question 35

What is S.76(7) of the objective test for force under the circumstances?

Answer 35

S. 76(7) – In deciding the question mentioned in subsection (3) the following considerations are taken into account…

That a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action;

and

That evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.

Question 36

What did Crime and Courts Act 2013 has amended S. 76 of the Criminal Justice and Immigration Act 2008 give?

Answer 36

A wider interpretation of the defence to householders, where an intruder enters their property.

Question 37

How does the normal rule differ from householder cases?

Answer 37

The normal rule for other cases remains that the defence can only be used if the use of force was reasonable and proportionate.

Question 38

What does the law recognise in householder cases?

Answer 38

In householder cases, the law recognises a higher degree of force and will only disallow a defence of self-defence if the degree of force was ‘grossly disproportionate.’

Question 39

The higher degree of force can only be used in a householder case where?

Answer 39

The force concerned is force used by the defendant whilst in or partly in a building that is a dwelling;

The defendant must not be a trespasser;

The defendant must have believed that the victim was a trespasser.

Question 40

What does the law intend to cover for householder cases?

Answer 40

This is intended to cover situations where a burglar or other intruder enters the defendant’s dwelling place and will stretch to any place of residence.

Question 41

Give a case for householder cases and what it said?

Answer 41

Collins v Secretary of State for Justice [2016]

The High Court rejected the claim, holding that the effect of S. 76 (5A) was to allow ‘a discretionary area of judgement in householder cases with a different emphasis to that applied in other cases.’

Question 41

Give a case for householder cases and what it said?

Answer 41

Collins v Secretary of State for Justice [2016]

The High Court rejected the claim, holding that the effect of S. 76 (5A) was to allow ‘a discretionary area of judgement in householder cases with a different emphasis to that applied in other cases.’

Question 42

EVALUATION

Answer 42

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Question 43

Is force necessary? What is the issue here?

Answer 43

Does a victim have to retreat before using force?

Question 44

Evaluation, what did R v Bird say?

Answer 44

Held: Appeal allowed. The conviction was quashed. Whilst withdrawing or demonstrating an unwillingness to fight is good evidence that the defendant is acting reasonably and in good faith in self-defence, there was no absolute obligation to demonstrate an unwillingness to retreat.

Question 44

Evaluation, what did R v Bird say?

Answer 44

Held: Appeal allowed. The conviction was quashed. Whilst withdrawing or demonstrating an unwillingness to fight is good evidence that the defendant is acting reasonably and in good faith in self-defence, there was no absolute obligation to demonstrate an unwillingness to retreat.

Question 45

Does a person have to retreat before using force? Give case law and statute.

Answer 45

S. 76 CJIA 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 (R v Hussain).

Question 46

Evaluation, what else does S.76 say?

Answer 46

S. 76 CJIA 2008 also makes it clear that, provided the mistake was not made due to intoxication, the defendant can rely on their mistake.

Question 47

What is the issue with S.76 and householders, explain what the law is suggesting and what the actual issue is in court.

Answer 47

The issue of householders and the use of force is also clarified under S. 76 which states that the use of force will be reasonable unless it is ‘grossly disproportionate’ in the circumstances.

This suggests that the law is supporting the view that householders have a moral right to defend their home or the people in it.

This issue here is it is left to the jury to decide what is ‘grossly disproportionate’ in the circumstances.

Question 48

Evaluation, can the law be to generous to defendants?
Explain.

Show the two sides to the argument.

PROTECT D
PROTECT V

Answer 48

Yes.
The defence is available even where the mistake the defendant has made is unreasonable.

It is too generous to judge defendants based on facts they unreasonably believe to be true.

If the defence is not allowed where the defendant honestly believed they were being attacked, then the defendant is at risk of being imprisoned when they were not technically at fault.

Against this, there is the need to protect the innocent victim who the defendant has assaulted due to a mistaken belief.

Question 49

Evaluation, do V have to wait to be attacked to use self-defence?

Answer 49

Those who act to prevent force is covered by the defence of self-defence.
It is not necessary for an attack to have started.

Question 50

Evaluation, are pre-emptive strikes sensible?

Answer 50

This appears to be a sensible rule, since it would be ridiculous if people had to wait until they were being attacked before defending themselves.

Question 51

Evaluation, has law on pre-emptive strikes stretched its authority in some situations?

Answer 51

Yes.

The law has been seen to have stretched this authority is some situations.
In A-G Reference (No 2 of 1983) the courts allowed the defendant to argue self-defence after preparing to defend himself using petrol bombs.

This was so even though the preparations involved a breach of the law.

Question 52

Explain the issue of a D using excessive force. Evaluation.

Answer 52

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 themselves and/or their property.

This should apply whether the person who uses force is a householder or acting outside of a house.
However, limits have been 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.

Question 53

Evaluation, when can excessive force be unfair?

Answer 53

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 set for minimum period.

Question 54

What can excessive force lead to the defence being called?

Answer 54

It can be said that this defence is an ‘all or nothing’ defence, meaning that a defendant will either succeed and be found not guilty or will fail and will be found guilty.

Question 55

Evaluation, what is suggested to fix the issue of excessive force, give case law.

Answer 55

It can be suggested that a new partial defence should be available for those defendants where the use of self-defence is justified but they have used excessive force when doing so (R v Martin (Antony)).

R v Clegg [1995] (extra)

Question 56

Another point is whether the defendant’s characteristics can be considered in deciding if the defendant thought that he needed to defend themselves (Evaluation), extend this point with case law.

Answer 56

In R v Martin (Antony) the Court of Appeal held that psychiatric evidence that the defendant had a condition entailing that he perceived much greater danger than the average person was not relevant to the question of whether the defendant had used reasonable force.

Question 57

Evaluation, what was one reason for the decision in R v Martin (Antony)?

What case confirmed this?

Is it fair?

Answer 57

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.

Confirmed in the case of R v Cairns [2005].

Not really because a medical decision could make someone use excessive force without them having control and if you link this to murder cases, it really isn’t their fault entirely.