Self defences

Where has self defence been codified?

• s.76 Criminal Justice and Immigration Act 2008

Private defence

• The right to use reasonable force to defend yourself, another, your property or the property of another

• The Common Law defence

Public defence

• The right to use reasonable force in the prevention of a crime, or effective, assisting or making a lawful arrest

• The statutory defence (s.3 Criminal Law Act 1967)

The test for self defence/ defence of another

• 1) Did the defendant believe the use of force to be necessary?

  2) Was the amount of force reasonable?

1) necessity of force

• The defendant will be judged according to the facts as they genuinely believed them (subjective test). Does not matter if force was actually necessary - R v Williams

Pre-Emptive strikes

• It is not necessary for an attack to be in progress, but is sufficient that the defendant apprehends an attack to be able to use the defence - R v Beckford

• A threat to kill can also be a defence - R v Cousins

s.76(3) Criminal Justice and Immigration Act 2008

• Degree of force must be proportionate to that of the circumstances the defendant believed themselves to be in.

Preparing for an attack

• The law may allow the defence even where they have prepared for the attack upon the basis of which they are claiming self defence

• Attorney Generals Reference 1984

• The duty to retreat

• It is not necessary to express a reluctance to fight in order for the defence to be applicable

• R v Bird

2) Reasonableness of force

• It must be considered whether the amount of

  force used by the defendant was reasonable

• R v Owino

What does s76(6) say about when force is reasonable?

• weapons may be considered proportionate in extreme cases

• proportionate force can turn into disproportionate force when the defendant doesnt cease when danger is gone

• the defence is lost entirely when the force is disproportionate

Two cases which exhibit excessive force?

• R v Clegg

• R v Martin

Householder cases

• s76(5A) CJIA states that in a ‘householder’ case, a defendant may use disproportionate force, but not grossly disproportionate.

Three criteria to be a household case

• the force must be caused by the defendant while in or partly in a building that is dwelling

• The defendant must not be a trespasser

• The defendant must have believed the victim to be a trespasser

Two part test for householder cases

• 1) was the degree of force used grossly disproportionate… if yes, defence is not applicable.

• If no, was the degree of force used reasonable… if yes, they have a defence.

R v Ray

• Confirmed the tests for householder cases, and also added other factors a jury might consider:

  • tthe shock of coming across an intruder

  • the time of day

  • vulnerabilities in the house

  • if any weapon or object was being used

  • the conduct of the intruder

Mistaken Self-defence

• if a defendant makes a mistake as to believing they needed to use self defence, but the belief they used reasonable force can provide a defence

• R v Williams

Intoxicated mistake

• voluntary intoxication does not qualify for mistake

• R v O’Grady