Self-Defence Flashcards
Palmer [1971] A.C. 814
self-defence - excessive force in self-defence
Appeal dismissed. There is no option for a verdict of manslaughter where a defendant uses excessive force in self-defence. The defence either succeeds in its entirety or it fails.
[831]It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary.
The appellant and two others were chased by three men after they stole some ganja. The three men had sticks and stones. During the chase the appellant fired shots. One of the men chasing them died of as a result of gun shot. The appellant’s case was that he had not fired the shot which killed the man although the trial judge directed the jury on self-defence. The jury convicted him of murder. He appealed contending that the judge in directing the jury on self-defence should have put an alternative verdict of manslaughter to the jury.
*Beckford [1988] 1 A.C. 130
= the authority for the test
self-defence - D’s belief
[145]*Their Lordships therefore… answer question 1(a) by saying that the test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another. *
= mixed-test : both subjective (what were in D’s mind the relevant circumstances) and objective (was your reaction reasonable)
The appellant was a police officer. According to the appellant a report had been received from Heather Barnes that her brother Chester Barnes was terrorising her mother with a gun. Heather Barnes, however, denied that she had made a telephone call to the police or that her brother was armed.
The appellant said that on arriving at the house, he saw a man run from the back door with an object which appeared to be a firearm. As the police followed him, the appellant stated that Barnes fired at the police, in response to this he fired back, shooting and killing Barnes. In fact no gun was ever found.
Collins [2016] EWHC 33 (Admin)
use of force - reasonable - D’s belief
[13] *The common law relating to self defence required consideration of two elements. The first was a subjective element, namely whether the defendant genuinely believed that it was necessary to use force to defend himself; the second was an element which is partly objective (whether the nature and degree of force used was reasonable in the circumstances) and partly subjective (on the basis that what was reasonable had to be tested against the circumstances as the defendant genuinely, even if mistakenly, believed them to be)… Once there was sufficient evidence to raise the defence, the burden of disproving it (to the criminal standard, i.e. so that the jury were sure that one or more of the elements are not established) rested on the prosecution.
= This appears to require consideration of: *
- First, whether the action was subjectively thought necessary by the defendant; and,
- Second, what the circumstances were subjectively believed to be by the defendant; and,
- Third, whether the action was objectively reasonable, judged based on those circumstances as the defendant subjectively believed them to be.
A householder injured the complainant when he trespassed using a headlock
Blake [1992] QBD
The use of force
*The defence provided by the section [s3 CLA 1976] is only available in relevant crimes committed by the use of force. The act committed by Mr Blake is insufficient to amount to force within the section. *
Jones [2006] UKHL
the use of force-reasonable force
25] I have some doubt whether section 3 [of the CLA 1967] was ever intended to apply to conduct like the appellants’ which, although causing damage to property in some cases, was entirely peaceable and involved no violence of any kind to any person.
Per Lord Hoffman
[71] I pass over the question of whether damaging property counts as the use of force within the meaning of section 3 of the 1967 Act. There is much to be said for the view that offences against property have their own provisions for justification, such as “reasonable excuse” as defined in section 5 of the [Criminal Damage] 1971 Act and that “force” in section 3 means force against persons committing crimes or escaping arrest. But I am willing to assume for the sake of argument that chaining oneself to railings or putting sugar into the petrol tanks of lorries involves the use of force for the purposes of section 3 of the 1967 Act.
[74] The crucial question, in my opinion, is whether one judges the reasonableness of the defendant’s actions as if he was the sheriff in a Western, the only law man in town, or whether it should be judged in its actual social setting, in a democratic society with its own appointed agents for the enforcement
= NB: crimes within English law not international law
In Jones the protesters did some property damage to protest later military action which they took to be crimes of aggression.
Martin (Anthony) [2001] EWCA Crim 2245:
reasonable force - mental illnesses
Whilst the personality disorder could not be considered for the purposes of self defence, it did amount to an abnormality of the mind which substantially impaired his mental responsibility for the killing. Since the psychiatric reports had not been considered by the jury his conviction for murder was quashed.
[67] We would accept that the jury are entitled to take into account in relation to self-defence the physical characteristics of the defendant. However, we would not agree that it is appropriate, except in exceptional circumstances which would make the evidence especially probative, in deciding whether excessive force has been used to take into account whether the defendant is suffering from some psychiatric condition.
=> If D has an unusual mental state: you can take that into account for the subjective circumstances but ignore it when dealing with the reasonableness of the behaviour. These exceptional circumstances have never been envisaged by the courts
Tony Martin lived alone on an isolated farm called Bleak House. The farm and surrounding buildings were dilapidated and appeared to be derelict. Consequently the farm was subject to numerous break-ins. On the night of Aug 20th 1999 Freddie Barras (aged 16) and Brendan Fearon (aged 30) broke into the farm. Tony Martin armed with a 12 bore shot gun went downstairs and fired indiscriminately at where he thought the disturbance came from. He shot both the intruders killing Barras by a gunshot wound to the back. At his trial his plea of self defence was rejected by the jury and he was convicted of murder. He appealed on the grounds that his personality disorder should be taken into account in assessing whether he had used reasonable force for the purposes of self defence.
Keane [2010] EWCA Crim 2514
Note that Keane was decided before the insertion of the ‘householder’ provisions; those provisions have altered the common law.
**Appeal dismissed: **
[6] For the avoidance of doubt, it is perhaps helpful to say of section 76 three things: (a) it does not alter the law as it has been for many years [NOTE: it does now in one respect to do with proportionality, as the legislation was amended after Keane]; (b) it does not exhaustively state the law of self-defence but it does state the basic principles; (c) it does not require any summing-up to rehearse the whole of its contents just because they are now contained in statute.
[17]* … 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. *
The appellant had been out drinking for the night in various pubs. In the final pub he met a man who offered him a lift home which he accepted. On the journey home the driver stopped to get petrol. The appellant got into an argument with one of the other passengers a young woman. The woman was smoking and the defendant had told her not to smoke as it was dangerous to do so. He became rude and aggressive and pushed her to the ground. The driver went to talk to the appellant. The appellant contended that he thought the driver was about to attack him so he punched him. The driver fell back and struck his head heavily on the concrete ground. He sustained serious head injuries and had no recollection of the night. The trial judge directed the jury that self-defence was not available where the defendant was the aggressor or had successfully and deliberately provoked the victim. Keane was convicted of GBH and appealed.
Ray [2017] EWCA Crim 1391
self-defence- use of force - disproportionate - householder cases s 76
in the relevant case was just ‘disproportionate’ in a HH yet not unreasonable.
It appears then that:
-If D was not a householder, then disproportionate force cannot be reasonable.
-If D was a householder, then grossly disproportionate force cannot be reasonable (but the use of force may still be unreasonable even if not grossly disproportionate).
[24] Once the jury have determined the circumstances as the defendant believed them to be, the issue, under s.76(3), for the jury is (as it always has been at common law) whether, in those circumstances, the degree of force used was reasonable.
[25] In determining the question of whether the degree of force used is reasonable, in a householder case, the effect of s.76(5A) is that the jury must first determine whether it was grossly disproportionate. If it was, the degree of force was not reasonable and the defence of self-defence is not made out.
[26] If the degree of force was not grossly disproportionate, then the effect of s.76(5A) is that the jury must consider whether that degree of force was reasonable taking into account all the circumstances of the case as the defendant believed them to be. The use of disproportionate force which is short of grossly disproportionate is not, on the wording of the section, of itself necessarily the use of reasonable force (It does not mean that it is reasonable, the jury has now to decide whether it is reasonable). The jury are in such a case, where the defendant is a householder, entitled to form the view, taking into account all the other circumstances (as the defendant believed them to be), that the degree of force used was either reasonable or not reasonable…
[27] The terms of the 2013 Act have therefore, in a householder case, slightly refined the common law in that a degree of force used that is disproportionate may nevertheless be reasonable.
[28] As subs.(6) makes clear, in a non-householder case the position is different; in such a case the degree of force used is not to be regarded as reasonable if it was disproportionate.
[29] … We… reject the contention that provided the degree of force used by a householder is not grossly disproportionate then it is necessarily reasonable.
Hatton [2005] EWCA Crim 2951
self-defence-mistake-intoxication
see o’Grady => The appeal was dismissed and the appellant’s conviction upheld. A defendant is not entitled to rely, so far as self-defence is concerned, upon a mistake of fact which has been induced by voluntary intoxication.
Appeal dismissed => conviction upheld
[23]We are obliged to follow O’Grady and to reject Mr Newman’s contention that the judge should have directed the jury to consider whether the appellant’s drunkenness might have led him to make a mistake as to the severity of any attack to which he may have been subjected by Mr Pashley.
The appellant battered Richard Pashley to death with a sledgehammer after consuming a large quantity of alcohol. Mr Pashley was 49. He suffered from manic depression and was prescribed Lithium to control disinhibition he experienced when in a manic state. On the day of his death he had not taken his Lithium and had twice the legal limit of alcohol in his blood. He had been behaving in a strange fashion, falsely representing that he had been an officer in the SAS and striking martial art poses. He had exhibited a hatred of homosexuals. The appellant and Mr Pashley did not know one another, but met in the early hours of 22 June in a nightclub. From there they drove together in the appellant’s car to his flat. The appellant called the police the following morning and stated there was a dead man in his flat. The appellant had no recollection of the actual killing but stated he vaguely remembered being hit with a stick. A five foot stick had been found underneath the deceased.
Taj [2018] EWCA Crim 1743
self-defence-mistake-intoxication
The Court of Appeal seems to have applied Oye in such a way that that condition could not form the basis for mistaken self-defence:
[63] In the normal course, once it is common ground that a defendant has a genuine belief in circumstances that might generate a defence of self defence, the decision whether or not the nature and degree of force used was reasonable in the circumstances is for the jury. This case, however, was not normal… [the Court of Appeal goes on to discuss and quote from Oye, above]
[64] That observation is equally apposite in this case. Any objective consideration of the facts revealed no reasonable basis for the response of Taj. At no stage was Mr Awain armed at the time of the attack and neither did he do anything to suggest that he might have been. Taj had alerted the police who had investigated Mr Awain and the contents of his van and were (entirely properly) fully satisfied that he was no more than that which he claimed: an electrician whose van had broken down. The police had reassured Taj who moved away, returning as Mr Awain remained in the vicinity of his van trying to summon help. Further, Mr Awain did nothing to resist Taj or fight back when he was attacked: rather, he tried to flee and was pursued. Finally, Taj was not deterred by the intervention of any of the witnesses, who describe the attack as “vicious”, “the worst that they had ever witnessed”, and “quite horrific”. There is no basis upon which the jury could have concluded that the extent of force used was reasonable.
contrast Harris on which the defence in Taj relied ( not a self- defence case): state caused by abstinence of alcohol of 5-6 days, he failed to form th MR, the Majewski rule did not apply since he was not intoxicated. you can argue that the context of the cases make it different.
Section s.76(5) was not confined to cases in which alcohol or drugs were still present in a defendant’s system; it could cover a mistaken state of mind immediately and proximately consequent upon earlier drinking or drug-taking. However, it did not extend to long-term mental illness precipitated by alcohol or drug misuse.
[60] In our view, the words “attributable to intoxication” in s. 76(5) are broad enough to encompass both (a) a mistaken state of mind as a result of being drunk or intoxicated at the time and (b) a mistaken state of mind immediately and proximately consequent upon earlier drink or drug-taking, so that even though the person concerned is not drunk or intoxicated at the time, the short-term effects can be shown to have triggered subsequent episodes of e.g. paranoia…We repeat that this conclusion does not extend to long term mental illness precipitated (perhaps over a considerable period) by alcohol or drug misuse.
T had abused drugs and alcohol from a young age. He admitted that he had been drinking heavily during the two evenings before the incident. He also admitted that during the weeks leading up to the incident he had been habitually drinking to excess and using cocaine.
Tought a man was a terrorist and beat him up, apart from the intoxicated mistake, the defendant was also suffering from bipolar affective disorder not amounting to insanity. The Court of Appeal seems to have applied Oye in such a way that that condition could not form the basis for mistaken self-defence:
Jaggard v Dickinson (1981) 72 Cr. App. R. 33
Note that in one very specific context, that of criminal damage, a defendant may be entitled to rely on certain intoxicated mistakes made in defence of property under ss. 5(2)(b) and 5(3) of the Criminal Damage Act 1971:
Held, allowing her appeal, that s.5(2) was concerned with the actual state of mind of the defendant at the time of commission of the offence, whether or not that state of mind was induced by drunkenness. ( DPP v Majewski [1977] A.C. 443, [1976] 4 WLUK 71 distinguished)
at 37 per Mustill J:
Parliament has specifically isolated one subjective element, in the shape of honest belief, and has given it separate treatment, and its own special gloss in section 5 (3) [of the Criminal Damage Act 1971]. This being so, there is nothing objectionable in giving it special treatment as regards drunkenness, in accordance with the natural meaning of the words.
The defendant caused damage to windows and a curtain whilst attempting to break into a house which she mistakenly believed to be her friend’s house. The friend allowed the defendant to treat the house as her own. She was convicted of causing criminal damage, the justices ruling that she was not entitled to rely upon the defence under the Criminal Damage Act 1971 s.5(2) and s.5(3) of the Act (that she honestly believed the friend would have consented to her actions) since that belief was induced by intoxication.
Oye [2013] EWCA Crim 1725 (emphasis added):
mistake and delusions
Note that Oye should not in theory preclude reliance on (even insane) delusions for the purposes of determining what D thought the situation was, merely it precludes reliance on such delusions about what constitutes a reasonable response, and makes clear that even within the context of delusion it remains an open question whether the response was reasonable. As the Crown conceded at trial that Oye believed he was being attacked by demons, the question was (presumably) what a reasonable response to that was.
It may be that it would be preferable for it to be clear that in such situations the appropriate response is the plea of insanity, but Oye does not make this clear.
HELD, ALLOWING THE APPEAL BUT SUBSTITUTING A VERDICT OF NOT GUILTY BY REASON OF INSANITY,
[47] The position remains, as we think plain from the provisions of s.76 of the 2008 Act, that the second limb of self-defence [that is, the reasonableness of the force used] does include an objective element by reference to reasonableness, even if there may also be a subjective element: see in particular s.76(6)… An insane person cannot set the standards of reasonableness as to the degree of force used by reference to his own insanity…
[48] The main thrust of Mr Akin-Olugbade’s arguments was based on the proposition first that the appellant was indeed suffering insane delusions causative of his behaviour (notwithstanding the jury’s verdict): and second that, that being so, it must be the case – or at all events it must be the case that the prosecution could not prove otherwise – that the force he used was reasonable in those circumstances as he believed them to be. But that simply does not necessarily follow. As s.76(6) makes clear, the position still requires objective assessment by reference to those circumstances. As Ms Macatonia told us, at trial the Crown disputed that, even within the delusions which it was accepted the appellant held, it was in fact reasonable to defend himself by the degree of force he used.
= even though your delusions are difficult
[50] – [51]:… it is the case that it has for some time been settled by authority – prior to the 2008 Act – that in self-defence cases the psychiatric characteristics of an accused cannot be brought into account on the issue of whether the degree of force used was reasonable in the circumstances. The first such authority is the case of Martin itself.
he goes to the cafe, start throwing things at ppl. Oye argues that he thought they were demons sent to attack him. The reasonableness remains a question for the jury.
