Self-Defence

Question 1

Initial Statement + Law self defence is under

Answer 1

S.76 of the Criminal Justice and Immigration act 2008 codified some common law principles of self defence and applies to prevention of crime.

Question 2

S.3 (1) Prevention of crime

Answer 2

“A person may use such force that is reasonable in the circumstances in the prevention of crime, or effecting, or assisting in the lawful arrest of an offender or suspected offender or persons unlawful at large”

Question 3

What will the courts Judge D based on?

Answer 3

Based on the given circumstances as he/she believed them to be.

Question 4

R V Beckford

Answer 4

Pre-emptive strikes are counted. The D does not need to wait to be attacked to strike.

Question 5

R v Cousins

Answer 5

Threat of force to stop an attack or prevent crime

Question 6

A-G ref no.2 1983

Answer 6

If D believes that she/he is at risk of an attack on himself or his property, he can make preparations to defend

Question 7

R v Bird

Answer 7

There is no duty to retreat

Question 8

R v Hussein

Answer 8

No duty to retreat, however the courts clarified that if attacker walks away and D chases him and attacks him, D will not be given the defence

Question 9

Force Reasonable?

S.76 (3)

Answer 9

“The question whether the degree of force used by the D was reasonable in the circumstances as the D believed them to be”

Question 10

Force Reasonable ?

S.76 (7)

Answer 10

“A person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary force”

Question 11

R v Owino

Answer 11

The Jury will consider if D acted in the heat of the moment, as long as D only did what he honestly believed was required; force is reasonable.

(Not purely objective nor subjective test)

Question 12

R v Martin

Answer 12

Psychiatric characteristics of the D could only be considered in exceptional circumstances

Question 13

R v Cairns

Answer 13

(Unlike psychiatric) Physical characteristics of the D may be taken into account

Question 14

S.43 Crime and Courts Act 2013

Answer 14

Force that is reasonable and disproportionate is allowed as long as it is not grossly disproportionate for intruders in homes

Question 15

R v Clegg

Answer 15

If D uses excessive force, he will not get the defence

Question 16

R v William (Gladstone)

Answer 16

If D makes a mistake (in using self defence) and that mistake is unreasonable, he can still get the defence if she/he genuinely believed the circumstances were different.

(Honest, need not be reasonable)

Question 17

R v O’Grady

Answer 17

Ruling on mistake changes if D made a mistake in thinking he needed self defence while intoxicated. No defence of self-defence granted.

Question 18

Burden of proof for self defence

Answer 18

Upon the prosecution to prove beyond reasonable doubt that the D was not acting in self dedence or force used was not reasonable

Question 19

Effect of successful gain of defense of self defence

Answer 19

If D is acting to protect themselves, others or their property, (and the force must be reasonable) they will have a complete defence to any crime. Not guilty full aquittal.

Justifiable force = no unlawful actions

Question 20

Mitaken Self-defence (adv)

Answer 20

• Allows flexibility in law, people can genuinely believe they are in danger when they are not
• allows court to decide based on circumstances and what is right and fair

Question 21

Mistaken Self-defence (disadv)

Answer 21

• Intoxicated mistake not allowed - harsh - intoxication is a defence for specific intent crimes only
• Unreasonable mistake: person killed, and family upset as D would get the defence? People could use this as an excuse

Question 22

Mistaken self defence (reform)

Answer 22

• Rule should be abolished, seen as too harsh, mistakes induced by self defence should be operative as defence

Question 23

Excessive Force (disadv)

Answer 23

• all or nothing approach, if use excessive force then no defence
• law says don’t have to measure to a nicety, however its left to the jury to decide: jury could be harsh
• law confuses public: what does excessive force mean? Do not have to weigh to a nicety but no excessive force (contradictory)

Question 24

Psychiatric conditions (disadv)

Answer 24

• R v Martin established that psychiatric conditions will not be taken into account –> this is unfair, as the defence is not available to those who may genuinely need it due to their conditions.
• A lot of these people may be women who may not be able to defend themselves initially, or who’s mental stability is more fragile due to conditions such as battered wife syndrome from abuse.
• criminal justice and immigration act did not clarify if it has changed its position on this in the act

Question 25

Psychiatric conditions (reform)

Answer 25

• To ensure that any vulnerability is taken into account before a verdict is given