Self defence (General Defence) Flashcards
What type of defence?
-Complete defence to murder
-if successful not guilty
-Shows that use of force was justified
How is it defined?
Common law and statute
Common law
Amended by Criminal justice and immigration act 2008
-s76 test of reasonableness
-self defence (defence of another) and property
Statute
s3 Criminal law act 1967
-actions taken to prevent a crime or arrest an offender, suspected offender or person at large.
What are the 2 main points?
-Was the use of force necessary
-Was the force used reasonable/proportionathe in the circumstances
Was the force necessary
-what will the dft be judged as
-case
-Judged according to the facts as he/she genuinely believes them to be(subjective)
-Gladstone and williams
Gladstone Williams
-Genuine mistake can give rise to using the defence even if that mistake was unreasonable
-Dft on bus and saw man assaulting youth, was police officer trying to arrest youth for mugging old lady. Man intervened and police officer got injured.
s76 (3) CJIA
-Decision in R v Gladstone and Williams into statutory footing and states whether degree of force used by the dft was reasonable in the circumstances is to be decided by reference to the circumstances as the dft believed them to be
s76(4)
if dft claims to hold a particular belief
a) reasonableness of belief relevant to qu whether genuinely held it
b) if determined did genuinely hold it then entitled to rely on it for purposed of s74(3) whether or not i) mistaken or ii) if mistkaen it was reaonable mistake to make
Drunken mistake
s76(5) if made mistake bc voluntarily got drunk or drugs then cant rely on mistaken belief
Mental conditions + cases
-D’s belief can result from psychiatric conditions
-Oye: where D has delusions only affects subj part of test. attacked police in cafe, evil spirits
-R v Press and Thompson: soldiers, ptsd, attack on man. PTSD might cause then to misunderstand whether defensive action neccessary. reasonableness in use of force obj
Pre-emptive necessary force
-Bird: showing unwillingness to fight is evidence of D’s reasonableness but there is no requirement to show unwillingness. Hit ex bf after he returned to her bday party w new gf.
-AG’s ref no 2. preparation for SD will be accepted as long as preparations cease once danger passed. Toxteh riots, shop already been damaged. Made petrol bombs
If dft was aggressor
-Even if dft original aggressor they may use force if the V’s response is not proportionate. not be a defence if dft’s aim all along to give themselves excuse to use force.
-R v Rashford: D sought V to attack for revenge, V responded out of proportion. Defence successful. Only lose defence if aggressor throughout the situation
Reasonable force
-Reasonableness of force considered on the facts as they were or if dft made mistake then on the facts as d genuinely believed to be
What is the rule in s76(6) of CJIA about reasonable force?
-Force which is disproportionate, except in householder cases, will not be reasonable
Test for reasonableness of force
-Objective
-A person w legitimate purpose might not be able to work out exact measure of force needed
-Evidence of them doing only what they honestly and instinctively thought was necessary for legitimate purpose shows that they took reasonable action.
Palmer
-A person defending himself cannot weight to a nicety the exact measure of his defensive action
What points will be taken into account when measuring reasonableness of force?
-no simple equality. not case that fight of fists has to be with fists. may be proportionate to use weapon when dft not attacked w weapon
-initially prop force may develop into disproportionate
-defence lost when force used disproportionate
cases for defence lost when force used disproportionate
-R v Clegg: soldier fired at back window of car that didnt stop at checkpoint. hit passenger and died, shot as car went past so no defence
-R v Martin: shot burglars as they were leaving, not self defence
R v Hussain
s3 Crim law act states can use reasonable force such as preventing a crime or making lawful arrest. Beating round head with bat is not reasonable force to make lawful arrest. not reasonable force
Householder cases
s76(5a) CJIA force which is grossly disproportionate will not be seen as reasonable. Householder can use reasonable and disproportionate force to protect self
What is needed for a householder case?
What are the tests?
-Force used by dft while in or partly in a building that is dwelling
- dft not be a trespasser
-dft must believe that v was trespasser
- was degree of force used grossly disproportionate in circumstacnes as believed to be (if yes no defence)
- Was degree of force reasonable in the circumstacnes as they believed them to be?
What matters might the jury have to consider?
-Shock of coming across intruder
-Time of day
-Vulnerability
-Weapon
-Conduct or prev conduct of intruder
cases for householder
Collins v Secretary of state: caught intruder, children in house, held in headlock and had brain damage. aim to allow discretionary area of judgement in householder cases with diff emphasis to other cases.
Doesn’t give right to use any degree of force but left to jury to decide if actions were reasonable
Statuatory defence
-S 3(1) CLA 1967 person may use force that is reasonable in circum in prev of crime, assissting in lawful arrest of offenders, suspected offenders or persons at large. can defend self, other people, defend property
Tests for stautory defence
-Whether dft believed that the force was necessary to prevent crime or assist a lawful arrest is subjective
-Whether force used was reasonable is objective
Case for stautory/householder
-R v Williams: stabbed dft and took necklace. Chased v with group and stabbed him. Not available for SD here.
-Householder cases can involve reasonable force to protect home or disproportionate force if D honestly thought required.
