Self-Defence Flashcards
When may self-defence apply?
When person acts to:
- protect themselves
- protect someone else
- protect property
- prevent a crime
- assist in the arrest of an offender
Can self-defence be used in defence to attack on the mind?
No must be used in defence to threat of physical force - like must be met with like
What two elements must D prove for successful self-defence?
(1) Trigger - the defendant honestly believed that the use of force was necessary (subjective) and
(2) Response - the level of force the defendant used in response was objectively reasonable in the circumstances as the defendant believed them to be (objective)
What happens if self-defence successfully pled?
Full acquittal
For the trigger of the defendant honestly believed that the use of force was necessary, does it matter how reasonably held that belief is?
No - as long as they genuinely believed them
So mistake would not prevent them from passing this hurdle
If the defendant’s belief is mistaken down to voluntary intoxication, can the defendant rely on their mistake?
No
Is there a duty to retreat in English law?
No duty to retreat although fact they had opportunity to retreat may be relevant factor
Can self-defence still be relied upon where defendant makes the first blow?
Yes - provided he was acting out of self-defence
Can self-defence be used against an innocent third party?
Theoretically yes if force necessary to protect themselves or others
Rarely going to happen on facts.
Eg police throws member of the public out of the way to prevent someone shooting a firearm
What test is to be used in assessing the response of D?
Whether or not the force used by D was proportionate in the circumstances as D believed them to be (objective)
Even though the response test is objective, what subjective elements must be taken into account?
- the circumstances as D believed them to be
- the danger as D believed it to be
What should jury bear in mind in assessing reasonable/proportionateness of D’s actions?
- D may have acted in the heat of the moment
- May have been difficult in the moment to weigh to a nicety the exact measure of necessary action
- evidence of D having only done what they honestly and instinctively thought was necessary for legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose
When will a case be a householder case?
- Where D is protecting themselves or another but not property, preventing crime or assisting in arrest of an offender
- D uses forces while in or partly in a building or part of a building, that is a dwelling or is forces accommodation
- building includes vehicle or vessel
- part of a building that is a dwelling includes place or work and internal access routes if D or another dwells in part of the building, another part of the building is a place of work for D or another person and you can move between the dwelling and place of work through an internal access route
- D is not a trespasser at the time force is used
- D believed the victim to be in, or entering the building or part as a trespasser
What is the test for the response for householder cases?
(1) Was the force grossly disproportionate in the circumstances as D believed them to be? If it was, there can be no defence
(2) If not, was the level of force reasonable? The jury should take into account that the level of force should not be weighed to a nicety and that if the defendant believed in a moment of unexpected anguish that they were using reasonable force, that was very good evidence that the force was reasonable. May also want to consider shock of incoming intruder, time of day, vulnerability of occupants, particularly children
