self defence evaluation

necessity of force

• the jury have to decide whether the force used was necessary

• this may be a difficult decision and the defendant may have made an honest but silly mistake

• in such a case if the jury thought it was necessary because of his mistaken belief (Williams 1987)

• it would be unfair to find someone criminally liable when they honestly believed they were doing the right thing

• the law should protect the “good samaritari”

• however, the law will not allow a mistake due to intoxication and this is sensible

pre - emptive strike

• law allows the defendant to act first to defend himself rather than wait for the victim to attack him first

• this could be too lenient as the defendant may misunderstand the victims actions and harm him when the victims had no such intent

• however, it would be unrealistic to expect the defendant to wait to find out how severe the attach on him is to be

• it may be a potentially fatal attack so D is entitled to strike first to prevent this providing the force is proportionate

amount of force

• if the defendant uses what the jury believes to be excessive force, he will lose the defence

• the problem is that in the “heat of the moment” it might be difficult for the defendant to “gauge” how much force to use (R v Martin) (R v Clegg)

• however if the defendant is allowed to use as much force as he wishes they may choose to deliberately harm the victim and use unreasonable and disproportionate force

• recent reforms allowed the defendant to use anything up to “grossly disproportionate force”

“all or nothing approach”

• the jury may decide that the defendant used force when necessary but it was “slightly” excessive

• this would completely deny the defendants the defence

• however, the line has to be drawn somewhere - defences have to be hard to prove or too many would be unfairly awarded one without the rule the defence would be abused

for a long time politicians have argued that self-defence is not available when it should be

• e.g. homeowners attacking burglars and then being arrested for the harm caused to the burglar → this was enacted in the Crime and Courts Act (2013) s.43(2) to reform the law to allow someone to use anything up to “grossly disproportionate” force and still potentially be allowed the defence

• the Coroners and Justice Act 2009 (following a Law Commission Report) introduced the loss of control defence which in similar situations to self-defence may provide an alternative (partial) defence where excessive force is predicted to rule out self-defence