Self defence evaluation Flashcards
What are 4 points to use for evaluation of SD?
-Excessive force
-Statutory confusion
-Pre emptive strikes must be proportionate
-Law should consider characteristics of the dft for defence of self-defence
Intro
-complete defence to crimes such as murder and assault. if successful then not guilty.
-protecting oneself, another, or property. common law and statute. CJIA 2008 and statutory is Criminal law act 1967 - actions taken to prevent a crime or arrest offender
-needs to be necessary to use force
Excessive force point and cases
-unclear what excessive force is as not defined. jury decides based on case facts whether proportionate. difficult to decide. R v Palmer, use common sense. can’t weigh to nicety
-Clegg: defence completely lost if force is considered excessive. Shot at car as went past. Martin: paranoia not relevant, shot at burglars as leaving. normal cases have to decide if reasonable. In householder it is if grossly disproportionate
Excessive force counter argument
-Reasonable force objective test. Considered on facts of case or as D genuinely believed them to be so fair as on case by case basis. Morally you should be able to protect self.
Statutory confusion
-Crim justice and immigration act passed to clarify common law on SD. section 76 (6) requires amount of force in circumstances as D believed them to be should be reasonable
-Crim justice and immigration act s76(5a) wider defence to householders as can use SD as long as force not grossly disproportioante. Confusing as act uses different terms to describe what is excessive/reasonable/disproprotionate. may lead to inconsistency
Statutory confusion counter argument
-Although issues, rules on pre-emptive strikes are important as right that the D doesn’t have to wait until they have been hit to act to prevent force as ridiculous to wait until attacked to fight back
Pre-emptive strikes
-Must be proportionate. sensible to allow people to make pre-emptive strikes when they can see they are abt to be attacked by another
-s76(6a) not under duty to retreat when acting for legitimate purpose but possibility of retreating relevant when considering if force necessary. people can act to prevent force
-AG’s reference. prep for SD will be accepted as long as preparation cease once danger has passed. ridiculous if have to wait to be attacked before can prepare
-R v Bird: showing unwillingness to fight is evidence of reasonableness but no requirement to show unwillingness
Pre emptive strikes counter argument
-Could be seen as aggressor
-Also judging what is proportionate response to something that hasn’t happened yet is difficult. Need to show that preparation is for a specific threat that genuinely believe will happen rather than general vigilantism or belief ‘might be attacked’
Characteristics of the dft
law should consider characteristics of dft for defence of self defence.
-would help as characteristics like psychiatric conditions may influence perception of what is a threat, resulting in false belief of being at risk of attack causing them to use force which may be disproportionate
-R v Oye, D had delusions and attacked police. Where D has delusions, only affects subj part. not to be taken into obj test.
-R v press and thompson: while PTSD may cause them t misunderstand whether action neccessary, degree of force obj.
-R v Martin: condition where percevied greater danger. Not relevant
Counter argument for characteristics of the dft
-difficulties, SD used in minor assault cases and not app to use medical disputes in cases like that. used as scapegoat or excuse for actions, too many claims of SD for minor cases. Case by case basis, judge has to apply common sense. law needs to protect people from excessive force.
conclusion
-could be improved as criticisms like no definition of excessive force, not considering characteristics of dft. Ideas for reform eg partial defence to allow some appreciation for self defence even if the force used was excessive and a definition for more clarity on what is reasonbale in circumstances and how jury can distinguish.
