self-defence

Question 1

What type of defence is self-defence

Answer 1

a general defence

Question 2

Where has the law been codified?

Answer 2

S.76 Criminal Justice and Immigration Act 2008: ‘Reasonable Force for purposes of self-defence etc’

Question 3

What is S 76(3)

Answer 3

the question of whether the degree of force used by D was reasonable in the circumstances appears to be objective and subjective. The Act states that the jury must take into account the circumstances that D believed them to be

Question 4

R v Beckford

Answer 4

the test to be applied for self-defence is that a person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another

Question 5

What happened in R v Beckford

Answer 5

police officers shot an unarmed man dead, who was trying to surrender. But they mistakenly believed he was armed and dangerous. Viewed subjectively, through mistaken belief may be reasonable to shoot someone armed and dangerous.

Question 6

What happened in Gladstone Williams

Answer 6

D used force to prevent a man, A, from assaulting another man, B, when A was actually making a citizen’s arrest of B for robbery. The issue said whether the force that the D used on A, would have been reasonable if he had been the criminal that D believed him to be, rather than the good citizen he was in reality.

Question 7

What happened in Faraj

Answer 7

D mistook a gas man for a burglar and used force to detain him. So he can rely on the mistaken belief as to the circumstances even though he is wrong, even though he is unreasonable in reaching the conclusion.

Question 8

What is the test as to the circumstances D believed them to be

Answer 8

subjective

Question 9

Which case influence Beckford

Answer 9

DPP v Morgan (rape at common law). Under Morgan as D who believes that his V consented was not a rapist, whether the belief was reasonable or not. The problem that no longer apply Morgan to rape cases, since Beckford Sexual Offences Act

Question 10

What was held in R v Beckford regarding the subjective test

Answer 10

if a genuine belief, albeit without reasonable grounds is a defence to rape because it negatives the necessary intention, so also must a genuine belief in facts which, if true, would justify self-defence be a defence to a crime of personal violence because the belief would negative the intent to act unlawfully.” (per Lord Griffiths)

Question 11

Can an insane belief generate self-defence?

Answer 11

No- Oye

Question 12

Facts of One

Answer 12

if D thought police officers were evil spirits, then although the act does not mention insanity, it cannot be right to allow to D the benefit of a deluded mistake, a mistake based on insanity.

Question 13

What happens when D’s belief is unreasonable

Answer 13

The less likely a jury will believe the belief

Question 14

Where is it set out how the jury should approach mistaken belief

Answer 14

S 76(4) CJIA

Question 15

What is the response to the subjective trigger

Answer 15

there must be an objective response in that the force used was reasonable and proportionate

Question 16

Who decides was it reasonable force

Answer 16

The jury

Question 17

R v Yaman on objective response

Answer 17

Section 76 makes it clear that the trigger for using force is assessed subjectively and the defendant’s response is to be assessed objectively. Thus if a person uses force in the belief that he is being attacked, then his response must be assessed objectively in the light of that subjective belief’

Question 18

Scarlet on the objective response

Answer 18

• the judge gave the impression the test was purely subjective. It seemed to allow a defence, if D believed that it was necessary, even if the amount of force was unreasonable. (It was recognised that a person may not be able to weigh to an exact nicety the exact amount of force to be used).

Question 19

Owino on the objective response

Answer 19

ndicated that the test was neither purely objective or subjective.

Question 20

What type of force must be used

Answer 20

In non-householder cases S 76(6) if the force used is disproportionate by the standards of a reasonable man then the force used is unreasonable.

Question 21

Where is the expiation set out for householders

Answer 21

The exception was introduced by s.76(5A) (added by Crime & Courts Act 2013, s.43) to allow a greater latitude in ‘householder’ cases following renewed public concern about repelling burglars to allow for grossly disproportionate.

Question 22

Sections which hold honestly and instinctively

Answer 22

S 76(4)-(8)

Question 23

What is a householder case?

Answer 23

A householder case is defined as where a person defends themselves or others from intruders in their own homes, which includes homes and dwellings S 76(8A)

Question 24

Where can a person use the householder defence

Answer 24

• A person can use this heightened defence in any part of the building where living accommodation is also part of the building. The householder will have access to the defence if the force used was disproportionate but not grossly disproportionate.

Question 25

Why do critics question if the householder defence is necessary

Answer 25

• Critics question whether there was any need for a special rule for householder cases in light of CJIA 2008, s.76(7): exact nicety

Question 26

Issue with proportionality as ECHR

Answer 26

• Art 2(right to life) requires states to provide a proper framework to deter/punish offences vs the person.

Question 27

In which case what it decided that self-defence was compliant with ECHR

Answer 27

R (Collins) v Sec St: the householder provisions are Art 2 compliant: Collins entered home at 3am, and went upstairs intending to steal but he was disturbed by B’s son. B put the intruder in headlock, but the time the police arrived, V suffered brain damage as a result of being restrained. CPS declined to prosecute, as they could see any jury would apply the householder defence in favour and not find to be grossly disproportionate. The family of the V argued not justified as part of Art 2 right to life, implicitly guarantees that the states will protect citizens from OAP. But it was held there was no failure to comply with Art 2. The HL held householders still liable for full range of OAP, and can still only use reasonable force, but adds discretion

Question 28

What does S 76(5A) allow which adds to the agruement it is compliant with ECHR

Answer 28

allows a ‘discretionary area of judgment’ to find force that is disproportionate (but not grossly so) to be reasonable. D cannot go ‘completely over the top’. The change is a ‘minor qualification’ which ‘adds emphasis’ to s.76(7) and links to the Art 8 rights to protection of the home. Upheld in Ray.

Question 29

Facts of Ray

Answer 29

D confronted by the V who was his partner’s ex. V forced his way into D’s home and started a fight in front of the young children who were living with D. D picked up a knife which he claimed he thought V was going for. Stabbed V and killed him. The jury convicted him of murder. Because trial judge laid down law correctly in accordance with Collins, CA upheld the conviction. Surprising that given the greater latitude jury still said one stab was not reasonable in all the circumstances. Whether greater latitude easier to apply when a householder kills a burglar who is there to steal? Does this excite the most sympathy? V in Ray is also a burglar if there to do harm.

Question 30

Can a mental disorder be taken into account?

Answer 30

does not help to say he overestimated the force because of mental disorder.

Question 31

Cases for mental disorder

Answer 31

Martin and Press and Thompson

Question 32

Facts of Martin (mental disorder)

Answer 32

D shot and killed a burglar. On appeal, there was new evidence that his personality disorder made him perceive an exaggerated threat to his personal safety. The CA held that in relation to objective test to excessive force has been used not appropriate, can’t take into account whether suffering from psychiatric condition.
‘..we would not agree that it is appropriate, except in exceptional circumstances which would make the evidence especially probative, in deciding whether excessive force has been used to take into account whether the defendant is suffering from some psychiatric condition.’ (Lord Woolf CJ)

Question 33

Facts of press and Thompson

Answer 33

D suffered PTSD and experienced a heightened sense of threats. He took part in a fight in which man was seriously injured. CA thought that possible his disorder might be relevant to the question whether he honestly and instantly thought the force he used was necessary. Seems wrong to expressly incorporating into the test of what constitutes reasonable force in response.

Question 34

What is the second part of the assessment

Answer 34

was the force necessary in the circumstances they appeared to D?

Question 35

What did AG ref No. 2 say about the necessity

Answer 35

D must apprehend danger that is specific and imminent (Ag Ref No 2).

Question 36

Will the defence be available against a long term threat?

Answer 36

Also, it is likely that the defence will be available if force has to be used immediately against a long-term threat if no other means of state assistance.

Question 37

Is there a duty to re-treat

Answer 37

Julien: must demonstrate that he is prepared to disengage and perhaps make some physical withdrawal. But in R v Bird it was held Julien was too onerous

Question 38

Facts of R v Bird

Answer 38

D hosting a party when her ex-boyfriend turned up and began abusing her. He held her against a wall and slapped her. She hit him with a glass taking his eye out. The CA held the test in Julien was too onerous and could not be said in every case the D should show they did not want to fight. A better way of looking at it, a question of how we evidence what is reasonable. In some circumstances would be reasonable to walk away if you could, not reasonable for her to do so.

Question 39

In what statute was it held that retreat can be a factor that can be taken into account

Answer 39

Legal Aid, Sentencing and Punishment of Offenders Act 2012, s.148 adds s.76(6A) to CJIA 2008. A factor to be considered rather than giving rise to a duty

Question 40

In which case was it said that retreat may not be an option

Answer 40

In R (Collins) v Secretary of State it was noted that in householder cases retreat may not be an option, hence the need for more jury discretion about the degree of force that is reasonable.

Question 41

Can D act preemptively

Answer 41

Yes, D does not need to wait for an attack circumstances may justify a pre-emptive strike R v Beckford

Question 42

What happened in the case of Deviln v Armstrong

Answer 42

In the case of] an attack which he honestly anticipated… the anticipated attack must be imminent” (MacDermott LCJ at 33). D feared the police in a possible riot situation might ultimately use unlawful force against a group of demonstrators. That did not entitle her to call on the demonstrators to use petrol bombs against the police. The threat was not an imminent one.

Question 43

Can self defence be used to justify vigilant behaviour?

Answer 43

Public policy dictates that self-defence should not be used to justify revenge or vigilante behaviour.
Keane: if D has shown himself to have provoked an attack, he has no defence unless V acted in an unforeseeably extreme manner.

Question 44

However when may D rely on self-defence even where he has provoked the incident

Answer 44

And D may start the fight as the aggressor but still rely on self-defence if the tables are turned.
Rashford: D went out looking for V with a knife but the CA still said that as a matter of law it will be wrong to say that D could never then use self-defence. Depends on the facts and the use of the force in question.

Question 45

Which case suggests that you can never rely on self-induced self defence

Answer 45

Mason

Question 46

Which cases allows to use self defence to protect others?

Answer 46

R v Duffy: D used force to protect her sister who was being attacked. In holding self-defence applied, the CA made clear there does not have to be any special relationship with the person you are defending. A general liberty even between strangers to prevent a felon.

Question 47

Statutory provision for self-defence of another

Answer 47

s.76(10)(b

Question 48

In which case was force used excessive hence no defence for murder

Answer 48

• Clegg: solider fired a shot at a car that drove through the check point without stopping. The was lawful. However, in the heat of the moment he fired an additional shot after the danger has passed killing the passenger. Convicted of murder, held by the HL that there was no half way house in the law of murder, no partial defence to reduce to MS. A person who uses more force than necessary can only be convicted of murder.

Question 49

Relationship with LOSC

Answer 49

R v Gurpinar: D, aged 14, fatally stabbed an unarmed boy who was attacking him with his fists. Not LOSC (D was scared and angry but did not lose self-control). Jury rejected self-defence - presumably because force excessive - therefore murder. Thus LOSC does not afford much help in a situation like Clegg (but might, if D had panicked and feared for his life)

Question 50

Force used against a their party

Answer 50

Hichens: if third party innocent, Gross in judgement is suppose police officer in order to get to a man who he thinks he about to set off a bomb, bundles an innocent third party out of the way. That he thought was an example of lawful force used against the passer by. But he suggests this would only be where there was a storng means to do so, and imminent and only such force would prevent it.

Question 51

Self defence and NFO

Answer 51

In Riddell the CA considered that self-defence might be open to D who drove dangerously to avoid what she thought was a threat of violence from another driver, effectively using her car as a weapon to push him away. Self-defence was not limited to OAP offences but if was limited to the use of force: however, there was force here. If D had got out of her car and pushed V, self-defence would apply to that, so could also apply when she effectively used the car as a weapon. Upheld conviction as her conduct could not be justified under conditions for self-defence. D had argued for (and failed on) a defence of duress of circumstances (see below). How if at all would self-defence be better?