self defence Flashcards
what type of defence is a common law defence of self defence/defence of another
a complete defence (D will be acquitted If he succeeds)
what is the right of private defence
the right to use force in defence of oneself, in defence of property or in defence of another against an unjustifiable attack
what statutory defence is there under s.3 CJA
statutory defence of prevention of crime
what type of defence is the statutory defence of prevention of crime
complete defence (d will be acquitted if it succeeds)
what is the right of public defence
the right to use force in the public interest to either prevent crime/lawfully arrest someone
what is private and public defence a general defence to
any crime of which the use of force is an element
who is the burden of proof on if D raises either private/public defence
the prosecution to disprove is beyond reasonable doubt
what are the two main points to be decided for private/public defence
- was the use of force necessary
- was the amount of force used reasonable in the circumstances
what must d firstly, honestly believe for their claim of private/public defence to succeed
that the circumstances are such that the use of force is necessary
is D under a duty to retreat if faced with threat from another
no, the possibility of retreat is merely a relevant factor to determine whether ds use of force was necessary: s76 CJ and immigration act
if the attacker is running away, is use of force considered necessary
it is highly unlikely that it will be considered necessary
which case supports the fact that it is highly unlikely Ds force will be considered necessary
HUSSAIN AND ANOTHER
HUSSAIN AND ANOTHER
C/A held that they could not use defence of self defence to avoid being guilty of s.18 as danger was over when they beat up the fleeing burglar. this was a revenge attack and use of force not necessary
does D have to wait to be attacked before he can use force to defend himself
no, d may make a pre-emptive strike or make preparations to defend himself if he apprehends an attack
which case illustrates that d does not have to wait to be attacked to defend himself
ATTORNEY-GENERALS REFERENCE
ATTORNEY GENERALS REFERENCE
C/A accepted that D could make preparations in self defence. this is so even if preparations involve breaches of the law
what is D to be judged on if he genuinely made a mistake about being threatned/needing to act to prevent crime
on the facts as he believed them to be. this is so even if the mistake was unreasonable s76 CJIA
which case is confirmed by the fact that d should be judges on facts as he believed if he makes a mistake about necessity of use of force
WILLIAMS
WILLIAMS
C/A quashed conviction and held that D was to be judges on facts as he believed them to be. his mistake as to the need to defend another didn’t have to be a reasonable one, as long as it was genuinely held
is a mistaken belief caused by ds voluntary intoxication sufficient for the defences of self defence/ prevention of crime
no
which case illustrates voluntary intoxication is not a defence for self defence/prevention of crime
O’GRADY
O’GRADY
defence of self-defence rejected due to intoxicated mistake
what must it be secondly for a private/public defence to be successful
that a reasonable person would have used that amount of force in the circumstances as d believed them to be
will the degree of force used be reasonable if it was disproportionate in circumstances
no, S76 CJIA
when will the degree of force used against a burglar not be reasonable in householder cases
if it was grossly disproportionate in the circumstances: s76 CJIA
what may d not be able to do in defence
to weigh to a nicety the exact measure of any necessary action s76 CJIA
when is there strong evidence that only reasonable action was taken
when D only did what he honestly and instinctively thought was necessary- s76 CJIA
what must the court ignore when deciding whether the degree of force used by d was reasonable in the circumstances
any psychiatric condition that might cause d to perceive much greater danger than the average man: MARTIN
