Self-Defence Flashcards
Palmer v R
Established the test we still have today in statutory form. A two stage test - it allows the def to use such force that is proportionate to the threat he faces.
The first stage of the test is subjective. There is a difference between objective and subjective. Subjective is “my view” This test is based on what the def thought. All we care about is what the def thought. Did the def honestly believe that it was necessary to use force?
OBJECTIVE: Did the def use a reasonable amount of force in the circumstances as he believed them to be?
He must respond in a way that it is proportionate to the event.
The essence of the defence’s proportionality…is you need to have a reasonable response to the threat you’re facing.
Section 76 (7)
Beckford v R
A police officer shot and killed a man who he believed had been terrorizing others with a gun. His conviction was quashed on the basis that self defence extended to those who acted in anticipation of danger. The principle that emerged was the justification for responding to an impending attack
AG Re (No 2 1983)
The defendant made petrol bombs to protect his shop against rioters and this was held to be acceptable as he had intended to use them only as a last resort. The charge here was possession of an explosive device. He made a defence that it was something necessary for him to be able to defend his property. Initially the court was of the view that there wasn’t a threat and that he was just storing weapons. But essentially the point of view was…if you wait for someone to enter the shop, then you can’t just make bombs then. So if the attack is imminent…and they were expecting the attack, they can arm themselves.
R v Bird
CA ruled that a person who had a choice as to whether to run away from an attack or stand and defend themselves, and they should not be deprived of the defence should they choose to stay and fight. Flight might be an ineffective way to protect yourself, so fighting might be the best option. A person will usually have an opportunity to make an escape.
R v Bird - the defendant was able to rely on self defence when she fought her boyfriend even though there had been an opportunity for her to escape rather than to use force against him.
Fleeing is not always an effective way to prevent an attack. It comes back to what the victim believes.
If there is an active threat and you choose to meet it head on rather than retreat, provided that is the most effective way to counter the offence, then you will still have the defence of self defence available to you.
Section 76 (6A)
R v Gladstone Williams
A def attacked someone wrongly believing them to have assaulted another man.
On the facts he believed them to be, he was preventing someone from being attacked. On the actual attack, there was no real attack, it was just someone apprehending a robber.
The CA held that an honestly held mistaken belief in the need to use force would not remove the defence from the defendant.
Section 76 (4)
R v O’Grady
The defendant was drunk and had taken drugs. He had gone to asleep; a friend tried to wake him up. He thought his friend waking him up was actually attacking him.
Lord Lane stated that reason recoils from an outcome that allows a defence to a person who has killed another as a result of a drunken mistake.
Section 76 (5)
R v Martin
A farmer who lived in a remote area. His farm was targeted by burglars on a regular basis. He made a self defence argument - he was a man living on his own living in a remote area, living under threat…and he didn’t know what the threat was. He used a gun. He shot the burglars in the back running a way. He had a personality disorder, however, that he was more anxious of danger than a normal person. The CA rejected this, but granted him a defence of diminished liability. He was convicted of manslaughter.
The judiciary was being influenced by public opinion here. The burglar was 16 years old.
The principle we have is that if your honest belief which is induced by mental health…will be weighed by the courts in certain circumstances.
Owino
The level of force must be reasonable in response to the facts as the defendant believed them to be.
R v Clegg
He was a soldier serving in northern ireland. He was at a check point where cars were required to be stopped and checked. A car was coming at him at speed. The car went through the check stop. The driver was a teenager on a joy ride.
Most people thought he should have had some defence. The HL considered carefully whether or not self defence could be a partial defence to murder - like diminished responsibility - but they said no. You are justified in your use of force or you are not.
Criminal Justice and Immigration Act 2008
Section 76 (4)
States that the defendant’s belief in the need to use force need only be honest, it need not be reasonable.
(Gladstone Williams)
Criminal Justice and Immigration Act 2008
Section 76 (5)
States that the defendant will not be able to rely on self-defence if the mistake was induced by intoxication.
(O’Grady)
Criminal Justice and Immigration Act 2008
Section 76 (6A)
Confirms that there is no duty to retreat but that the failure to take an opportunity to retreat may be relevant.
(Bird)
Criminal Justice and Immigration Act 2008
Section 76 (7)
Stipulates that a person acting in the heat of the moment may not be able to weigh the nicety of the level of force.
(Palmer)
Criminal Justice and Immigration Act 2008
Section 76 (5A)
Provides that the degree of force will not be reasonable if it is GROSSLY disproportionate to the circumstances as the defendant believed them to be. This applies to householders only.
Criminal Justice and Immigration Act 2008
Section 76 (6)
States that the degree of force will not be reasonable if it was disproportionate to the circumstances that the defendant believed them to be. This applies to all other circumstances.
