Self-defence

Question 1

Self-defence PQ steps

Answer 1

1. Identify an offence
2. State the legal elements of the AR and MR and apply to the facts
3. Consider possible defences – state the legal principles and apply – All legal principles stated should have authority (legislation and/or caselaw)
4. When applying the law to the facts, consider both Prosecution and Defence arguments (but note some elements might not be contentious)
5. Weigh up these arguments and conclude

Question 2

Self-defence general rules

Answer 2

• Private defence = defence to any crime that involves an element of force + Evidential burden of raising self-defence on the defence
• Genral rule = If D honestly believes that V is threatening the person or property of D or any other person without lawful authority, then D can use such force against V or V’s property as is reasonably necessary in order to defend against the attack [Beckford v The Queen]
• Basic approach = subjective belief in the defensive force + objectives reasonableness of the force D chooses to use
• Criminal Immigration and Justice Act 2008 = aimed to clarify the existing law
• s.76 = reasonable force for the purpose of self-defence reflects Beckford v The Queen
• If successful, then full acquittal [Palmer v The Queen]

Question 3

Subjective beleif in the need for defensive force

Answer 3

• s.76 (3) CJIA 2008: was the degree of force used by D reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be = subjective
• s. 76(4) CJIA 2008: (a) reasonableness of the belief is relevant as to whether D genuinely held it but (b) if genuinely held, D can rely on (3) whether it was (i) mistake, or (ii) the mistake was a reasonable one to have made
• This is a reflection of R v Williams (Gladstone) = M saw a man robbing a woman you knocked the guy to the ground to prevent it, D saw M and the man wrestling, so D punched M, the defence was that D genuinely thought that D was attacking the other guy, the CoA held that the honest belief does not have to be on reasonable grounds, D should be judged based on mistaken facts whether they were reasonable or not
• This is supported by Beckford = police officers attend a scene where a gun was seen, they see V running away and think he has a gun, when he doesn’t, CoA confirmed that D can rely on a mistaken event, even if it was not a reasonable one
• Vs. The Queen v Dadson = You can’t argue self-defence on the basis of facts that existed at the time but D did not know about – as the test is subjective [this was a case on a convicted felon, at the time the police could shoot them, but the officer did not know this when he shot at him]

Question 4

Intoxication and mistaken belief

Answer 4

• s.76(5) reflects the common law position in O’Grady – but subsection (4)(b) does not enable D to rely on any mistaken belief attributable to intoxication that was voluntarily induced
• O’Grady = For self-defence you cannot rely on a mistake of fact through voluntary intoxication at the time of the offence
• Taj = D thought that V was a terrorist, his car had just broken down, the police reassured him that he was not, he didn’t believe them, so hit V, the court held that the phrase ‘attributable to intoxication’ is not confined to cases where the alcohol or drugs are present in the system of D at the time of the offence, so it was broad encompass to encompass a mistaken state of mind immediately and proximately consequent on earlier drinking or drug taking, so the short term effects on intoxication could be shown to have triggered the paranoia

Question 5

Pre-emptive measures or strikes?

Answer 5

• Beckford [police officer shoots thinking man running away had a gun] = in certain circumstances, pre-emptive strikes may be allowed
• A-G’s Ref (No. 2 of 1983) = general fear of violence is not enough, it is open to D to argue that there would have been an imminent attack, so appropriate force could have been used + self-defence may allow D to store a weapon to ward off a suspected attack but this depends on circumstances – this case concerned riots, and D’s shop had lost things, so he boarded the shop and armed himself, the suspected attack never amounted to anything
• Vs. R v Salih = D’s shop had imitation knives and other weapons, pistols found, D said that he never intended to use them, only to protect himself, the court held that self-defence can only be raised where there is an imminent attack, not a possible attack
• R v Cockburn = D had a trap to injury someone going into his shed, it happened to be a police officer who was injured, D reasoned that youths had been breaking into his shed, it was however, not self-defence as there was no imminent attack

Question 6

Duty to retreat

Answer 6

• s.76(6A) = a possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat
• R v Bird (Debbie) = past relationship with guest at D’s party with new girlfriend, got into an argument, which became physical, he held her against the wall, she lunged at him, she had a glass in her hand, which made contact with his face, and he lost an eye, D argued self-defence and she didn’t realise that she had a glass in her hand, conviction quashed on appeal based on that the trial judge got it wrong that in self-defence there is an unwillingness to fight, the court held that if D tried to retreat that might be a factor, but it is not necessary for D to disengage and withdraw
• R v Field = there is no duty to leave a place because someone is coming to attack you, D was warned that V was looking to attack him, V attacked D, who got the better of him, on appeal the court held that self-defence only arises when there is a present threat, so not when V was looking for him, and D should not be deprived of the defence because he stood his ground

Question 7

What is D started the fight?

Answer 7

• R v Browne = if D provokes V, just to claim self-defence, them the defence cannot be used
• R v Rashford = if d starts a fight, to which V reacts disproportionally, D can respond to defend themselves

Question 8

Can you use force agaisnt innocent/irresoponsible attackers?

Answer 8

Re A (Children) (Conjoined twins) = a person can use reasonable force against an unjustifiable attack even against those who are not criminally responsible, such as children under 10 or those that are insane

Question 9

Objective reasonableness of force D chooses to use - statute

Answer 9

• s.76(6) In a case other than a householder case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was disproportionate in those circumstances.
• s.76 (7) = when deciding if D had a genuine belief, considerations can be taken into account: (a) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action + (b) that evidence of a person’s having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
• s.76 (10) (a) = legitimate purpose is defence of property, prevention of a crime, in defence of another, self-defence
• There is leeway for acting in the heat of the moment = s.76(7) (a)(b) [reflected in Palmer]

Question 10

Objective reasonableness of force D chooses to use - caselaw

Answer 10

• R v Scarlett = D was a pub landlord, V was refused as past closing, D went to escort V from the bar, V swung arm, D pinned him against the wall, as D went to go, C fell down stairs and died, the prosecution argued that the force was excessive, the CoA said that D was entitled to the defence of mistaken self-defence, as to the amount of force used – vs. The mistake in Williams was as to whether force was necessary not the amount [vs. Accidental use of excessive force is not enough to satisfy manslaughter]
• R v Owino clarifies the law = D claimed that his wife’s injuries were from him using reasonable force to restrain her from using force on him, although her injuries included a broken arm, and he hit her multiple times on the head, the court held that even if D thought it was necessary to use force, the amount in this case was excessive, so itis not self-defence
• Martin (Anthony) v R = D shot a burglar in his home, D was paranoid, and lived in an isolated farm, break in woke D up, got his shotgun, with no warning shot at them, they were running away, the CoA held that the jury can take into account the physical characteristics of D, but not D’s psychiatric disorder [R v Canns = confirmed Martin]
• R v Taj = is mistaken belief from a psychiatric condition then that is pleading insanity, a mistaken belief from other things can be considered in self-defence

Question 11

Exceptions - householder cases = statute

Answer 11

s.76(5A) = the degree of force is not to be regarded as reasonable if it was grossly disproportionate vs. Householder cases which are defined in s.76(8A) = (b) D was in or partly in a building, or part of a building, that is a dwelling or is forces accommodation (or is both), and at the time D believed V to be entering, he building, or part as a trespasser

Question 12

Exceptions - householder cases = case law

Answer 12

Collins v Secretary of State for Justice = D held V in a headlock for 6 minutes and V suffered severe brain damage, the court held that the CPS misunderstood the law, and the household provision does not authorise the use of disproportionate force, falling short of grossly disproportionate force by householders, so householders may have acted unreasonably with the degree of force that was used, even though it was only just disproportionate – so too much, but not grossly