SELF-DEFENCE - GENERAL DEFENCE (paper 1)

Question 1

introduction

Answer 1

• set out in s76 of the criminal justice act 2008
• the statutory provisions encompass the old common law rules which existed pre-before 2008 on S-D, the law pm prevention of crime is set out in S3 of the criminal law act 1976
• defence of justification and if successful d will walk free with a complete acquittal
• case of Keane (2010) confirmed that the purpose if the 2008 act was to clarify the law

Question 2

element 1 - did D believe the force was require din the circumstances?

Answer 2

• d must believe some force was required confirmed in S76(3) of the act
• genuine, honest sober mistake will satisfy, confirmed in s76(4) of the act clarifying Williams case
• intoxicated mistakes bout self-defence will not be sufficient (s76 (5))
• D is not under any duty to retreat ( S6 A of CJ and immigration act)
• can make pre-emptive strikes and preparations for an attack
• D can make threats of violence
• defence isn’t available to people acting in revenge

Question 3

element 2 - was the force used reasonable?

Answer 3

• jury must decide if they believe the force used by D was reasonable in the circumstances
• confirmed in s76 (3) of the 2008 act
• s76 (6) of the act tries to explain what degree of force will be reasonable
• degree of force is reasonable if it is proportionate
• a person acting for a legitimate purpose cannot be expected to with to the nicety the exact measure of necessary action (s76 (7))
• no defence if the danger has already passed

Question 4

Homeowners

Answer 4

• s76 of the 2008 act was amended in 2013 by s43 of the crime and courts act
• a different test for the reasonableness of force used by D’s at home/in a dwelling
• seems that house holders can use for defence than others
  act says that to be a house holder case (1) force used by D was in a building which is a dwelling (2) D must not be a trespasser (3) D must have believed V to be a trespasser

Question 5

effect

Answer 5

• full defence if successful
• available for all crimes including murder

Question 6

R v Williams (1987)

Answer 6

• D grabbed V, am off duty police officer whom he mistakenly thought was attacking a youth
• mistaken use of self defence
• honest, genuine, sober mistake will be allowed for the defence

Question 7

A-G ref. No. 2 of 1983 (1984)

Answer 7

• D kept petrol bombs in shop for protection after his shop had been attacked several times during riots
• pre-emptive strikes
• a person is entitled to make preparations in self-defence for future attacks

Question 8

R v Clegg (1995)

Answer 8

• D, a soldier, shot and killed a joyrider whom he thought was a terrorist
• excessive force was used
• not self-defence as the danger had already passed

Question 9

R v Martin (2002)

Answer 9

• shot and killed a burglar
• excessive force
• nor SD as shot was made when V was making escape (already passed)

Question 10

R v Hussain (2010)

Answer 10

• S chased and caught a burglar that he found in his house
• H beat him with a cricket bat
• excessive force
• not SD, seen as revenge

Question 11

R v Oye (2013)

Answer 11

• D arrested after behaving oldy in café, he threw plate at officers and fought them while being arrested
• psychological characteristics not relevant
• SD rejected but allowed to plea for insanity

Question 12

R v Taj

Answer 12

• D fatally wounded V who he wrongly believed was a terrorist about to plant bomb
• D was under the influence of drugs
• mistaken use of self defence
• CA upheld conviction for murder, rejecting self defence while intoxicated

Question 13

evaluation - was the 2008 act a missed opportunity to reform the law?

Answer 13

• made clear in the case of Keane 2010 the purpose of the act was only to clarify the common law not to change
• some say the 2008 CJ and immigration act was a missed opportunity to reform the law on SD + that many problems exist including the all or nothing effect, injustice of intoxicated mistakes, not taking into account metal issues if D (Martin)

Question 14

evaluation - wording of the act

Answer 14

• wording remains open and vague for the jury to interpret
• could be goof at allows flexibility and the jury to reflect the views of society

Question 15

evaluation - the homeowner provisions

Answer 15

• many felt that the 2008 act failed to deal adequately with the rights of homeowners and failed to address controversial cases like Martin
• s76(5) says that D can be acquitted on the grounds of SD if the jury believe the forced used by D was not grossly disproportionate in the circumstances
• only a[applies to people who trespass
• concerns for decisions like in the case of Collins which seemed very pro house holder, judges once said ‘you should never kill for a candelstick

Question 16

evaluation - in some ways the law does create a fair balance

Answer 16

• law recognises the right to deal with the first blow/fire in cases like Beckford which seems justified, however its less clear for those who fight back (Mclnnes)
• many argue it leaves too much discussion for the jury and its hard for them to decide if its aggression or self-defence

Question 17

evaluation - problems with intoxicated mistakes about the need for amount of force needed

Answer 17

• any defendants who have used s-d whilst intoxicated are excluded from getting the defence (Hatton and O’Grady)
• seems harsh and unjust as an intoxicated person is more likely to make a mistake about the need for force
• however it was kept at s76(5) of the 2008 act largely for public policy reasons