Self-Defence Flashcards
Evidential burden on D, burden of proof on prosecution to prove it was not SD
Palmer 1971
s.76 Criminal Justice and Immigration Act does not change the law, it codifies the common law
Keane
the defence under the common law act (s.3) is not confined to police officers
DPP v Metcalf
common law and statutory law co-exist, the legal rules are the same
McInnes
Force cannot be excessive (must be reasonable)
Also, abnormality of mind cannot be taken into account in whether the amount of force was reasonable but could lead to a diminished responsibility
R v Martin (Anthony)
The current situation
a person may use such force as is (objectively) reasonable in the circumstances as he (subjectively) believes them to be
(this confirmed the ratio of… )
- if D was labouring under a mistake as to the facts, he should be judged under this view, not a reasonable persons view, so long as it is an honest belief
Owino 1996
Williams 1987
Williams 1987
There must be a threat to D or someone else for the availability of self defence.
R v Hitchens
The need for force - if D could have escaped from the threat peacefully and did not then SD not available - i.e. if threat has gone and then D attacks… not SD (acting in revenge)
Hussain 2010
SD is not precluded because D is the initial agressor
- Can rely on SD if ‘tables had been turned’
- ‘roles were reversed’ ‘so out of proportion’
Rashford
Harvey
Keane
Reasonableness of amount of force is judged objectively
Oye
not possible in that instant to exactly measure how much force is reasonable. D’s genuine belief in the necessary amount can point toward objective reasonableness
Palmer
Example of disproportionate/ unreasonable force being used - no threat from V
Yaman
Unresolved issue - whether the reasonableness of force used by professionals should be assessed in the light of this specialist knowledge - suggestion / persuasive authority to give the ‘reasonable person’ in this case the experience of the specialist
Webster
Common law originally imposed a duty to retreat
Julien 1969
duty to retreat was removed. The possibility of walking away is still relevant but no duty to - SD not relevant if revenging yourself though
Bird 1985
there have still been cases where court held no SD because D did not walk away - proportionality vs necessity
There are situations in which the only proportionate response is to ‘take a step backwards and walk away’
Brooks v DPP
Aznaag v CPS
circumstances may justify a pre-emptive strike (about to be attacked)
Beckford
Should not deny someone opportunity to prepare themselves immediately before an attack. If the preparation is for a lawful purpose - no more than necessary and to protect against attack then it is fine
AG’s Ref (No 2 of 1983)
Householder cases - if D has gone completely over the top, these actions would be grossly disproportionate (unless there was some material reason to show otherwise)
R (Collins)
Householder cases:
Was the degree of force grossly disproportionate in the circumstances as D believed them to be?
If no, was the degree of force used reasonable in the circumstances as D believed them to be?
Duty to retreat is important in distinction between proportionate and grossly disproportionate.
R (Collins) v Sec of State for Justice
Mistake and SD - SD is available provided the belief about need for force is honestly held
Williams
the subjective approach to mistake and SD is not problematic, it has been suggested that juries can be trusted and it has not led to too many people using the defence successfully and wrongfully.
Beckford
Intoxication and Mistake - defence not open to someone who makes a mistake about need for force due to voluntary intoxication
O’Grady
Murder and Excessive force
- SD either succeeds or fails (all or nothing)
Palmer
If SD fails, there is no protection at all. Should we consider reducing to manslaughter if SD fails due to unreasonable force
disagrees with above - not for judicial decision to decide about manslaughter - if there was an intention to kill where is SD or not, cannot be manslaughter.
There is no alternative but to convict of murder. Lord here thinks that this should be left to Parliament
McInnes
AG for NI’s Reference (No.1 of 1975)
Clegg
