Self defence

What type of defence is this?

A complete defence. If successful, D will be found not guilty. It covers actions needed to defend oneself from attack, actions taken to defend another person or ones property.

Who does the burden of proof lie with?

The prosecution - they must provide sufficient evidence to satisfy a jury beyond reasonable doubt that the defendant was either:

• not acting to defend him/herself or another ;or

• Not acting to defend property; or not acting to prevent a crime or to apprehend an offender; or

• Was so acting, the force used was excessive.

Where are the rules of self-defence set out?

1. Criminal justice and immigration act 2008 (s76)

2. S3(1) of the criminal law act 1967

What are the two essential elements of self-defence?

1. Was it necessary to use force? (Subjective test)

2. Was the force used reasonable? (Objective test)

What test did the privy council establish on appeal of case Beckford v The Queen 1988?

A person may use such force as is reasonable in the circumstances as he honestly believes them to be in the defence of himself or another.

What does the Criminal Justice and Immigration Act 2008 state, confirming the decisions in Gladstone Williams and Beckford?

3. The question whether the degree of force used by D was reasonable in the circumstances is decided by reference to the circumstances as D believed them to be…

4. If D claims to have held a particular belief as regards the existence of any circumstances

   A. The reasonableness or otherwise of that belief is relevant to the question whether D genuinely held it: but

   B. If it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not

   I. It was mistaken, or

   II. (If mistaken) the mistake was a reasonable one to have made. (This is an objective test).

Can D use the defence if they gave voluntarily taken drugs or got drunk?

If D made a mistake because they’d voluntarily taken drugs/become drunk and made the mistake due to intoxicated state, then they cant rely on their mistaken belief.

This is set out in section 76(5) Criminal Justice and Immigration Act 2008

What happens in a case where D suffers from delusions?

D’s genuine belief can also include delusions that are a result of a psychiatric condition eg: PTSD.

In which case did the court have to consider delusions caused by psychiatric conditions as a part of this defence?

Seun oye - D attacked police officer in coffee shop and later in the cells. Charged w s20 OAPA. Claimed he was being threatened and ‘rushed’ by evil spirits and had to defend himself. Jury rejected insanity defence and D had to rely on self defence. C of A rejected defence of self-defence because ‘ the more insanely deluded a person may be in using violence in supposed sealed-defence, the more likely that an entire acquittal may result’.

Is there a duty to retreat? What case supports this?

There’s no duty, it’s just a factor taken into account when deciding if D can use the defence.

R v Bird 1986 - D’s boyfriend turned up at a party and caused an argument. He was asked to leave but later returned causing more conflict. D poured drink over him, and he slapped her and pinned her against a wall. D punched him in the face, claiming she forgot she was holding a glass, causing him to lose an eye. She was charged w s20 OAPA but in C of A, conviction was quashed.

If D was the aggressor, can they still use the defence?

If they are the initial aggressor, D may use force if V’s response is wholly disproportionate and so seriously threatens D, provided that this wasn’t D’s aim all along.

See case of Rashford (2005) - D sought out V, intending to attack him in revenge for earlier dispute, but V and friends responded out of proportion to D’s aggression. Couldn’t use defence because D was being an aggressor throughout the situation.

What is the objective test for proportional use of force, and where is it set out?

Objective test looks at balance between risk of harm to D and risk of harm to V.

Set out in s76(6) of the criminal justice and immigration act 2008

What other 2 factors are taken into consideration alongside objective test for proportionate use of force?

1. Person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necessary action (s76(7)(a)), and

2. Evidence of a persons having only done what the person honestly and instinctively though was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose (s76(7)(b))

What case introduced the ‘householder clause’ in the criminal justice and immigration act?

Martin (Anthony) 2002 - 2 burglars broke into D’s isolated farmhouse. D shot at them, when they were leaving, and one of the burglars, who had been shot in the back, died. The other suffered serious injuries. D’s claim of self-defence was rejected, as danger had passed. Under householder clause, he wouldn’t have been found guilty.

What is the criteria for a case to fall under the householder clause?

1. The force must be used by D while in/partly in a building that is a dwelling

2. D mustn’t be a trespasser

3. D must have believed V to be a trespasser

Doesn’t apply to customers who use force against an intruder.

Force used still needs to be reasonable - if force is disproportionate, then they wont get the defence.

What other factors can a jury consider when deciding a reasonable degree of force?

1. The shock of coming across an intruder in the house

2. The time of day

3. The presence and vulnerability of others in the house, especially any children

4. If any weapon or object was being used or picked up

5. The conduct (or previous conduct, if known) of the intruder

What does section 3(1) of the Criminal Law Act 1967 state?

A person may use such force as is reasonable in the circumstances in the prevention of crime, or in affecting or assisting the lawful arrest of offenders or of persons unlawfully at large.

What does s3(1) of the criminal law act 1967 allow a person to do?

1. Allow a person to defend themselves from any form of attack, so long as the attack is criminal

2. Prevent an attack on another person, or

3. Defend their property - this can include possessions demanded by a mugger, where there might also be physical danger to the owner.