Self Defence Flashcards
Self defence
Defence based on common law and cofidied in s76 Criminal and Justice Act 2008.
In order to determine whether D can use the defence, there are two questions that must be asked.
- Was the force necessary?
It must be necessary for D to use force.
This is judged subjectively (Did D believe it was necessary to use force?)
S76(4)
The reasonableness of D’s belief is relevant to whether the jury believe that belief was genuine.
Williams (Gladstone)
If D made a genuine mistake about needing to use force, D will be judged on the basis of what he thought was happening.
- Imminent threat: Beckford
Threat must be imminent i.e going to happen very soon.
“A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot: the circumstances may justify a pre-emptive strike”
AG’s ref (No 2 of 1983)
Someone who fears an imminent attack can make preparations to defend himself (even if those preparations are unlawful).
Malnik
Unlike AG’s ref, D had created a dangerous situation, there was no imminent threat.
Martin
Self defence failed as force used was disproportionate to the threat.
- Not under an obligation to retreat
D doesn’t have to run away from perceived threat. There might be circumstances where D can stay and defend himself.
S76(6A) Criminal Justice and Immigration Act 2008
Possibility that D could have retreated is a factor to be taken into account.
- The force used is disproportionate to the perceived threat
S76(3) CJIA ‘08
Determining if force used by D was reasonable in the circumstances is decided by referring to the circumstances as D believed them to be.
These may include:
- Who/what is being threatened?
- How many parties are there on each ‘side’?
- What is the respective strength/ size of the parties?
S76(5A) Criminal Justice and Immigration Act 2008
In a householder case, the degree of force used by D is NOT reasonable if it is GROSSLY DISPROPORTIONATE.
S76(7)(A) CJIA ‘08
A person acting for a legitimate purpose may not be able to “weigh to a nicety the exact measure of necessary action” i.e may not be able to measure exactly how much force he needs to use in the heat of the moment.
S76(7)(B) CJIA’ 08
If D has only done what he honestly and instinctively thought was necessary for a legitimate purpose, this is strong evidence that D only took reasonable action.
Hussain
If force is used by way of revenge or retaliation this will always be unnecessary.
