Self defence

Question 1

Where does self defence come from?

Answer 1

Common law, now partly codified in Criminal Justice and Immigration Act 2008.

Question 2

What counts as self defence?

Answer 2

-Defending oneself
-Defending another person
-Defending property

Question 3

Which crimes can use self defence?

Answer 3

It is a general and complete defence, so all crimes, even murder.

Question 4

What are the 2 main parts to self defence?

Answer 4

-Was it necessary for D to use force?
-Was the force used proportionate to the perceived threat?

Question 5

What does it mean for if it was necessary for D to use force?

Answer 5

It is a subjective test, so it considers if D honestly believed it was necessary to use force.

Question 6

What factors can be considered to decide if D thought it was necessary to use force?

Answer 6

-D must think the threat is imminent
-Whether D made an honest mistake
-If D had the opportunity to retreat

Question 7

What does it mean that D thinks the threat is imminent?

Answer 7

Beckford- D doesn’t have to wait for force to be used against him, he can use a preemptive strike.

Question 8

What happens if D makes an honest mistake?

Answer 8

Gladstone Williams- this doesn’t matter. As long as the mistake is genuine and honest, the jury can find that the force was necessary.

Question 9

What if D had the opportunity to retreat?

Answer 9

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.

Question 10

What happens if D makes an intoxicated mistake about whether force was necessary?

Answer 10

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.

Question 11

How do you determine if the force used is proportionate to the perceived threat?

Answer 11

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.

Question 12

What is D not expected to do when determining proportionate force?

Answer 12

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.

Question 13

What is strong evidence D only took reasonable action?

Answer 13

s76(7)(b) of Criminal Justice and Immigration Act 2008- if D has only done what he honestly and instinctively thought was necessary.

Question 14

What is the limit on self defence?

Answer 14

Hussain- using force in revenge/ retaliation is not allowed and using excessive force is not allowed.

Question 15

What is eval point number 1?

Answer 15

The rule for retreat is not very clear. On the one hand, the fact that D can choose to fight rather than having to retreat is positive because there may be situations where it makes
sense for D to stay and fight rather than leaving (eg a parent choosing to stay and fight rather than abandoning their child). However, choosing to fight is still evidence against force
being necessary and suggests that D really should retreat if they can. This means it is confusing for a jury to know whether choosing to stay and fight will prevent force being necessary. Consequently, the law may not be very effective if it is hard to understand the
rules and what is allowed.

Question 16

What is eval point number 2?

Answer 16

It is also unclear if the concept of reasonable force is objective or subjective. S76(3) and 76(7) suggest that reasonable force is subjective and is based on what D thought was
reasonable in the circumstances he believed existed. This is good because it gives the benefit of the doubt to D when it may be impossible to ever know what is reasonable in the
heat of the moment. However, the force was not considered reasonable in Clegg despite D honestly believing he was defending against terrorists in the heat of the moment. This suggests the test is based on what was actually reasonable (objective), meaning the law is not clear on how it actually works. This is especially bad in murder cases such as Clegg, where D will either be acquitted or receive a life sentence depending on the verdict. The law
is not effective if it is hard to determine which of these starkly different outcomes will arise.

Question 17

What is eval point number 3?

Answer 17

Another discussion point is that excessive self-defence is never an excuse. This can easily be justified because D should only be allowed to use reasonable force when it is necessary, and prevents people killing out of revenge (like in Hussain). However, in DPP v Clegg, this was argued as rigid because the police and military had no defence for using excessive self- defence. Such people are often in violent and life-threatening situations to protect society and are more likely to need to use extreme force. On the occasions where too much force is used, it may be unfair to consider this as ‘murder’. Consequently, this rigidity may be
ineffective in certain situations, but generally is a positive position for the law.

Question 18

What is eval point number 4?

Answer 18

An intoxicated mistake about what D was doing was a defence for murder in Lipman, but amistake about needing to use force in O’Grady stopped D being able to use self-defence. This can be justified as a policy decision – it makes sure people are extra careful when taking intoxicating substances and stops people trying to argue they felt they needed to use force just because they were drunk. However, the inconsistency creates uncertainty and surely an intoxicated D is less blameworthy if he genuinely thinks he is defending himself than if he kills for some other reason. D can legally rely on a mistake in self-defence if they are being foolish but sober, and D can legally rely on intoxication to serious crimes like
murder,so it seems really unfair D can’t rely on a drunken mistake for self-defence – even
for minor crimes like battery! Consequently, this area of law is highly ineffective due to the
confusion and inconsistency created.