Self defence Flashcards
Definition
Protecting yourself or another, or one’s property, from harm, where an attacker may be committing a crime.
Who raises the defence of self defence?
The defendent
What does the prosecution have to prove?
That D did not act in self defence.
What crimes does self defence apply too?
All fatal and non fatal offences.
What happens if it’s accepted by the Jury?
It’s a complete defence.
Legal authority
S76 Criminal justice and immigration Act 2008
What did the new legal authority do?
Codified previous law where there were two defences.
What two elements need to be proved?
Neccesity of force
Reasonable force
Neccesity of force test
Subjective
Reasonable force test
Objective
In Neccesity of force what does the danger have to be.
Present
Immediate
Not passed by
First problem
What happens if you defend someone who does not need defending?
Gladstone
Genuine belief neccesary to intervene as form of self defence so defence applies.
What test is used for when defending someone who does not need defending?
Subjective
Second problem
What happens if you make a mistake due to intoxication?
Grady
Cant rely on self defence if mistake induced by voluntary intoxication.
Third problem
Does D have duty to retreat or not take first hit?
Bird
Not neccesary for D to show an unwillingness to fight. D can react immediately and first if circumstances warrant.
Fourth problem
What if the D is the aggressor?
Rashford
May use force if V’s response is out of proportion but generally cant use self defence.
Fifth problem
What if there is an alternative way?
Burns
Defence refused as alternative to the force.
Whats element two?
Reasonable force
What is reasonable force?
Force that is reasonable in all circumstances as they appear to D.
What does palmer say?
‘A person defending himself cannot weigh to a nicety the exact measure of his defensive action’
What does S76(6) Criminal Justice and Immigration Act 2008 say about householder cases?
Disproportionate force is reasonable.
What did S43 Crime and Courts Act amend too?
Force not unreasonable in household case unless grossly disproportionate.
For non householder cases?
D can not use disproportionate force at all.
Sixth problem
What if D suffered from a psychiatric condition which made him percieve a greater danger than the average?
Martin
Characteristics of D irrelevant except in exceptional circumstances.
Oye
D can be mistaken about the circumstances to act but not the amount of force neccesary.
Thompson
Can take into account psychiatric condition but up to jury to decide if action proportionate.
Clegg
Defence either succeeds totally or not at all.
