self defence Flashcards
Where does self defence come from?
Common law, now partly codified in Criminal Justice and Immigration Act 2008.
What counts as self defence?
-Defending oneself
-Defending another person
-Defending property
Which crimes can use self defence?
It is a general and complete defence, so all crimes, even murder.
What are the 2 main parts to self defence?
-Was it necessary for D to use force?
-Was the force used proportionate to the perceived threat?
What does it mean for if it was necessary for D to use force?
It is a subjective test, so it considers if D honestly believed it was necessary to use force.
What factors can be considered to decide if D thought it was necessary to use force?
-D must think the threat is imminent
-Whether D made an honest mistake
-If D had the opportunity to retreat
What does it mean they D thinks the threat is imminent?
Beckford- D doesn’t have to wait for force to be used against him, he can use a preemptive strike.
What happens if D makes an honest mistake?
Gladstone Williams- this doesn’t matter. As long as the mistake is genuine and honest, the jury can find that the force was necessary.
What if D had the opportunity to retreat?
s76(6A) Criminal Justice and Immigration Act 2008 and R v Bird- D doesn’t have a duty to retreat but if D has the opportunity to retreat but fails to do so, the jury are more likely to decide the force used was not necessary.
What happens if D makes an intoxicated mistake about whether force was necessary?
s76(5) of Criminal Justice and Immigration Act 2008 and O’Grady- intoxicated mistakes about self defence are not allowed and D will not be able to use the defence.
How do you determine if the force used is proportionate to the perceived threat?
s76(3) of Criminal Justice and Immigration Act 2008- for a jury to decide if the force used by D was proportionate, it must look at the circumstances as D believed them to be.
What is D not expected to do when determining proportionate force?
s76(7)(a) of Criminal Justice and Immigration Act 2008- D is not expected to weigh to a nicety the exact measure of any necessary action. This means D may not be able to measure exactly how much force he needs to use in the heat of the moment and D is given the benefit of the doubt.
What is strong evidence D only took reasonable action?
s76(7)(b) of Criminal Justice and Immigration Act 2008- if D has only done what he honestly and instinctively thought was necessary.
What is the limit on self defence?
Hussain- using force in revenge/ retaliation is not allowed and using excessive force is not allowed.
