Self defence evaluation Flashcards
Neccesity to act A01
Present and not passed.
D is judged on facts as he believed them too be.
Force can only usually be used when threat is imminent.
Neccesity to act A03 Fair
Fair to D as objective test is harsh.
Protects V stops people taking revenge.
Neccesity to act A03 Unfair
CJIA does not define so problems as to when it can be used.
Potential for misuse as circumstances don’t have to be reasonable.
Victim may not have done anything.
D is judged on facts as he believed them too be case
Williams
Reforms for Neccesity to act
Belief must be reasonable
Statute definition of ‘imminent’
Common law decisions on Neccesity A01
If D is mistaken because he is voluntarily intoxicated can’t use.
D can still use defence even if he has opportunity to retreat and reacted first.
D is mistaken voluntairly intoxicated case
O grady
Opportunity to retreat and react first case
Bird
Common law decisions on Neccesity A03 Fair
Bird is fair shouldnt have to wait to be attacked.
Intoxication rule fair as being drunk is reckless.
Common law decisions on Neccesity A03 Unfair
How imminent is unclear
Bird too wide encourage offensive rather than defensive action
Burns contradicts Bird
Why does burns contradict bird?
As he was unable to use the defence due to alternative to force.
Reasonable force A01
Force used must be reasonable
D may not at the time be able to ‘weigh to a nicety’
Psychiatric condition not taken into account (Martin)
Householder can’t use grossly disproportionate force.
Who said householder can’t use grossly disproportionate force?
S43 Crime and Courts Act
Who said D may not be able to ‘weigh to a nicety’?
CJIA
Reasonable force A03 Fair
Ensure right defence used.
Allows flexibility and reality.
Prevents people going too far.
Ensure right defence used case
Oye
Allows flexibility and reality case
Palmer
Reasonable force A03 unfair
Difficult for juries to decide issue as little statutory or case law advice
Depends upon gender
Martin only exceptional circumstances however not a lot of cases.
What did the 2003 amendment seem to suggest?
use more force to protect property than people.
All or nothing nature of the defence A01
There is no fall back position to lesser offence.
Defence will not be available if force used after danger had passed.
If defence fails judge can take into account circumstances when sentencing.
Defence will not be available if force used after danger had passed case
Clegg
If defence fails judge can take into account circumstances when sentencing.
Martin
Reforms 1
Law continues to offer no defence if act through fear.
Reform 2
More clarification needed regarding proportionate force
Reform 3
More clarification needed regarding ‘grossly disproportionate force’
Reform 4
Allow a fall back lesser offence so no longer All or nothing
