Self Defence Flashcards
Who bears the burden of proof for a defence?
DPP v Kelly The prosecution bears the burden of proof for every matter at trial, including negating beyond reasonable doubt any defence raised by the accused.
DPP v Smyth Snr There must be some evidence which the accused can point to whereby a particular defence to a crime becomes open.
The exceptions to this general rule are are insanity, diminished responsiblity, and reasonable mistake as to age which must be proven by the accused on the balance of probabilities (reasonable mistake is called into question by CW v Ireland)
Describe the law as regards to ‘Self Defence’ as a defence to use of fatal force
AG v Keatley The use of force must have been necessary for the defence of self, others, or property. If such force was necessary, and no more force than was necessary was used the accused is entitled to an accquital. A man has no right to revenge himself once danger is passed.
AG v Dwyer If fatal force was not necessary, and the accused did indeed use more force than was necessary, but did not use more force than he honestly believed necessary then it will consitute manslaughter not murder.
AG v Commane Introduced purpose of preventing a crime to the summary of the three step test. Accused knew he had used more force than was necessary (victim was unconscious already) so murder.
Ross v Curtin Honest belief is a subjective test, a man cannot be expected to take more reasonable steps in danger (shooting a warning shot in a robbery)
Describe the law as to the defence of self defence for the use of fatal force and the ‘halfway house’ defence.
AG v Dwyer If fatal force was not necessary, and the accused did indeed use more force than was necessary, but did not use more force than he honestly believed necessary then it will consitute manslaughter not murder.
AG v Commane Accused knew he had used more force than was necessary (victim was unconscious already) so murder.
R v Palmer this ‘halfway house’ defence is not accepted in UK case law.The defence suceeds in its entirety or not at all. The jury may take the situation into account in determining whther force was excessive. ‘If a Jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken’
Can self defence be raised if the threat has passed?
No, there is a requirement of imminence for self defence as seen in DPP v Kelso (absolute requirement) and DPP v Clarke (factor to be considered)
Describe the law in regard to self defence as a defence to the use of non fatal force.
s.18 NFOAP Act 1997 The use of force by a person for the purpose of protecting himself or another person from a criminal act, property belonging to himself or another, or preventing a crime, as is reasonable in the circumstances as he or she believed them to be, does not constitute an offence.
DPP v O’Brien This involves a two part test, did the accused honestly believe the use of force was necessary, and was the force actually used necessary in the circumstances as the accused believed them to be.
DPP v Quinn highlighted the two limb test is subjective.
Is there an obligation to retreat before using force self defence?
R v McInnes No obligation, but whether there was such an opportunity will be a factor in determining the necessity of the use of force.
Describe the law as to the defence of a dwelling?
s.2 The Criminal Law (Defence and the Dwelling) Act 2011 It shall not be an offence for a person in his or her own dwelling, or a lawful occupant of such, to use force against another person who they believe to be a trespasser that intends to commit a criminal act as they believed necessary to protect a person or property, or prevent the commission of a crime.
Honest, not reasonable belief.
No obligation to retreat in your own house.
Applies to fatal force.
