Self defence structure Flashcards
Identify and define
Self defence is a general defence. Therefore it can be used for any/all crimes (where mens rea is required). S3.1 of the Criminal Law Act 1967 also covers the defence of prevention of crime.
What kind of defence is it?
It is a complete defence and if D successfully uses it they’ll be acquitted.
Two main areas need to be considered, what are they?
Was it necessary for D to use force?
Was the force used proportionate to the perceived threat?
Step one - necessity
The test is subjective. If the use of force can be justified, then the defence can be used. This is a question for the jury.
That D genuinely believed, regardless of whether or not this was a reasonable mistake. This was applied in (Williams) D was able to use the defence - thought young person was being attacked.
A statute formed under S76.5 of the Criminal Justice and Immigration Act 2008 stated D cannot use the defence if his mistake was made due to being intoxicated.
D does not have to wait until he is attacked to act, he
can make the first blow known as a pre-emptive strike. This was upheld in the case of (Bird)
Step two - Proportionate to the perceived threat
S76.6 of Criminal Justice and Immigration Act 2008 says D may not be able to measure up exactly the amount of force he needs to use in that moment. This allows the fact a person facing attack will be under stress and should not be expected to calculate the force needed in those circumstances.
The act also states - if a person honestly or instinctively thought the level of force used was necessary this is strong evidence that the defensive force was reasonable - negated if D is voluntarily intoxicated.
Where force is unreasonable the defence cannot be used, what are the cases backing this?
Clegg and Martin Anthony
