self defence Flashcards
complete defence
common law defence of self defence and property amended by…
S.76 Criminal Justice and Immigration Act 2008
statutory defence under…
S.3 the Criminal Law Act 1967
actions taken to prevent a crime or arrest an offender, suspected offender or a parson at large
two main points:
- was the use of force necessary?
- was the force used reasonable/proportionate in circumstances?
was the force necessary?
subjective test - the D will be judged according to the facts as he or she genuinely believed them to be
Gladstone Williams
D thought he saw a man assaulting a youth. the man was trying to arrest the youth for mugging an old lady.
There was struggle and the man was injured.
Need to judge the D according to his beliefs no matter if it was reasonable or unreasonable.
s.76(3) CJ and I Act
whether degree of force used was reasonable in the circumstances is to be decided with reference to the circumstances as the D believed them.
s.76(4) CJ and I Act
if D claims to held a particular belief the court can look at:
> whether the belief was reasonable in the circumstances for the D believe it
>whether the D could rely on it for purposes of self defence
>it was mistaken
>if mistaken, was it a reasonable one to have made
s.76(5) drunken mistake
if a D made the mistake because they had voluntarily got drunk to taken drugs, and made the mistake due to the intoxicating state, then they cannot rely on a mistaken belief.
R v O’Grady
the effect of mental conditions
The Ds genuine belief can include delusions resulting from a psychiatric condition or another condition such as PTSD
R v Oye
believed the police had demonic faces and were agents of evil spirits
Bird
There is no requirement to show an unwillingness to fight or a willingness to retreat, but it is a factor that’s taken into account
AGs reference
D owned a shop and other shops in the area had been looted.He boarded up his shop and made petrol bombs to use as a last resort.
self defence could extend to preparatory acts, even if they were unlawful as long as preparation ceased after danger passed
what if the D is the aggressor?
generally, a person who starts a fight cannot rely upon self defence
they may use for if the Vs response is disproportionate and seriously threatens the D
Rashford
D intended to attack V, but the V and his friends responded out of proportion. The defence was successful
D loses the defence if they are the aggressor throughout the situation
reasonable force
the reasonableness of the force used is considered on the facts as they were, or if the D made a mistake, on the facts as the D genuinely believed them
s.76(6) CJ and I Act states…
that, except in ‘householder case’, force which is disproportionate will not be reasonable.
OBJECTIVE TEST
It balances the risk of harm to the D with the risk of harm to V, but takes into account that:
> a person with a legitimate purpose might not be able to work out the exact measure of any necessary action (s.76(7)(a))
Evidence of them only doing what they honestly and instinctively thought was necessary for a legitimate purpose shows that they took reasonable action (s.76(7)(b))
CODIFIES RULINGS IN PALMER
following points may also be taken into account:
> no simple reckoning of equality - it may be proportionate for a weapon to be used in extreme cases, where the D is attacked without a weapon
> initial proportionate force may develop into disproportionate force e.g. D doesn’t stop after danged has been removed/passed
> the defence is lost entirely when the force used is disproportionate
R v Clegg
soldier at a checkpoint in northern Ireland told a car to stop that was speeding but it didn’t stop. D fired 3 shots at the windscreen of the car and one as it passed. the final shot killed the passenger - fatal shot fired as car gone past, danger had past = excessive force used
R v Martin
two burglars broke into Ds isolated farmhouse, he fired several shots at them; one of them died and the other had serious injuries.
the D claimed he shot in self-defence but evidence showed that they were leaving earn he shot them so the defence was not effective
s.3 CL Act states…
a person can use reasonable force, such as preventing a crime, making a lawful arrest.
R v Hussain- D was allowed to chase the intruders for 100 yards to make a lawful arrest. However, D beating the V with force which broke the cricket bat didn’t constitute reasonable force to make an arrest. his attack was sustained and vicious
Householder cases
s.76(5)(a) CJ and I Act states…
in a householder case, force which is grossly disproportionate will not be seen as reasonable. This means that a householder can use reasonable force, and now disproportionate force, to protect themselves and others in the house, but to grossly disproportionate force.
To be a householder case:
> the force must be used by the D while in or partly in a building that’s a dwelling
The D must be a trespasser
D must’ve believed V was a trespasser
assuming the D genuinely believed that the force was necessary, the tests to be considered are:
- was the degree of force the D used grossly disproportionate in the circumstances he believed them to be?
IF NO THEN.. - was the degree of force the D used reasonable in the circumstances they believed them to be ?
IF REASONABLE = DEFENCE
R v Ray
There was fight and fearing that V would use the knife against him, D fatally stabbed V
defence failed
householder cases the law is:
> whether the degree of force is reasonable depends on the circumstances as the D believed them
> not regarded as acting reasonably in the circumstances if the degree of force is grossly disproportionate
> grossly disproportionate - force went completely over the top
> jury decide on whether force is reasonable - disproportionate force may not be seen as reasonable
jury might have to consider:
> the shock of seeing the intruder
> the time of day
> presence+vulnerability of others in the house, especially children
> weapons or objects being used or picked up
> conduct of offender or previous conduct if known
Collins v Secretary of State for justice
V broke into Ds house at 3am where he had 3 children and 3 friends, one child confronted V. D held the V in a headlock for 6mins and he suffered irreversible brain damage.
CPS decided not to prosecute.
s.76(5)(a) confirmed
s.76(5)(a)
does not give householder the right to use any degree of force but it is left to the jury to decide whether the actions were reasonable in the circumstances
STATUTORY DEFENCE
(public defence)
s.3(1) criminal law Act -
person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of the offender or suspected offender
reasonable force can be used for an individual in the prevention of any crime or in making an arrest to:
> allow a person to defend themself from any attack, as long as criminal
> prevent an attack on another person or
> defend their property-can include possessions, where there might also be physical danger to the owner
R v Williams
V stabbed D and took necklace from him at a party. V ran away and was chased by a group led by D. They caught up with him and fatally stabbed V.
Self defence to available here
