Self defence

Question 1

What was the purpose of the codification of s 76

Answer 1

codification and reform by S 76 directed at defining the level of force that is reasonable which was driven by media interest especially incases of householders

Question 2

What is the general standard of force

Answer 2

S 76(6) the force must not be disproportionate

Question 3

What is the general standard for householders

Answer 3

S 76(5A) the force can be disproportionate but not grossly so

Question 4

Why was householders changed

Answer 4

the issue became politicised fuelled by inaccurate media and public concerns that householders were not adequately protected therefore in reaction to public pressure the law was codified

Question 5

Why do critics question the need for the householder defence

Answer 5

In light of S 76(7) exact nicety and honestly and instinctively thought

Question 6

Why is S 76(7) problematic

Answer 6

take almost vertatim from Lord Morris in Plamer referring to a person in a moment of unexpected anguish doing only what he honestly and instinctively thought

Question 7

What is the problem in householder cases

Answer 7

The problem is that cases where the potential for the defence to apply where V is killed so long as reasonable on the facts that D believed them to be

Question 8

What Art has householder defence been argued to be in breach of

Answer 8

Art 2 right to life requires the state to provide a proper framework to deter/punish offences against the perso

Question 9

Which case held that ECHR compliant

Answer 9

R v Collins v SS held that the provision in Art 2 as householders can still be liable for a range of offences against the person and the defence only allows for reasonable force. Art 76(5A) allows for a discretionary area of judgement to find dispropoionate but not grossly so to be reasonable, therefore D cannot go over the top. Argues this is only a minor qualification which simply adds emphasis to S 76(7)

Question 10

What other Art ECHR right is concerned

Answer 10

Art 8 right to protection of home

Question 11

What does De Than and Elvin commentators agree

Answer 11

Art 2 is not an absolute right, it permits life to be taken when abolsutley necessary McCann v UK ECtHR said this would require good reason

Question 12

Will there ever be a good reason

Answer 12

if D is mistaken in his belief albeit an honest belief would this be capable of constituting a good ground? Arguably not. However ECtHR yet to find a breach of Art 2. However, a case of mistaken belief has not been assessed in the ECtHR therefore there is potential for a breach to be found

Question 13

What did Editor say

Answer 13

the law in relation to householders demonstrates the worst features on populist unprincipled law reform

Question 14

Should there be a partial defence instead for excessive force

Answer 14

The trigger is subjective on the facts believed was force necessary this includes mistaken belief (excluding intoxication), therefore instead of a unqualified acquittal should there be a partial defence to act as a middle ground?

Question 15

Who did the partial defence find favour with

Answer 15

the LC

Question 16

which case was a partial defence considered

Answer 16

the HL in Clegg, but held there was no half way house in murder. no rule that D who used more force than was necessary in the circumstance should be found guilty of MS. Such a change would have to come from Parliament

Question 17

If used excessive force what may D be able to rely on

Answer 17

A partial defence e.g. under LOSC due to the expansion of the trigger to include a fear of serious violene

Question 18

However what will not be covered by LOSC

Answer 18

those who kill without actual LOSC. E.g. R v Gurnipar, D fatally stabbed someone when he was attacked. Not LOSC as he did not LOSC although he was scared and feared the attack. SD also rejected as force was excessive. However, if he panicked and feared for his like LOSC then he may be afforded a defence.