Self defence

Types of defence

Full defence

Definition

A person is allowed to use force as is reasonable in the circumstances, as they genuinely believe them to be, to defend himself, another or their property.

Types of self defence

Most recent definition is in the Criminal Justice and Immigration Act 2008 s76

Private defence

• Person may use such force as is reasonable in the circumstances to defend themselves or property from actual or imminent attack or defending another from such an attack.

Public defence

• Person may use such force as is reasonable in the circumstances to prevent the commission of an offence or effect a lawful arrest.

Criminal Justice and Immigration Act 2008 s76

definition

Necessity of force

This is a subjective test.

• Jury considers whether the D genuinely believed it was necessary to use force at all, Dewar, Harvey

• This is based on genuine belief rather than the facts of the case so if they have a mistaken belief they may still be able to use the defence, even if it is not a reasonable belief, Gladstone Williams

• If a D makes a mistake as to the need for self-defence because they are intoxicated they cannot rely upon a mistake of fact which has been induced by voluntary intoxication, O’Grady

• The D is able to make a pre-emptive strike they do not have to wait till an attack has taken place, Beckford

• There is no obligation to retreat from attack, Bird (more likely to be seen as reasonable if they do).

Dewar

Jury considers whether the D genuinely believed it was necessary to use force at all

Gladstone Williams

This is based on genuine belief rather than the facts of the case so if they have a mistaken belief they may still be able to use the defence, even if it is not a reasonable belief

O’Grady

If a D makes a mistake as to the need for self-defence because they are intoxicated they cannot rely upon a mistake of fact which has been induced by voluntary intoxication

Beckford

The D is able to make a pre-emptive strike they do not have to wait till an attack has taken place

Bird

There is no obligation to retreat from attack (more likely to be seen as reasonable if they do).

Reasonableness of force

This is an objective test.

• Force must be reasonable in the circumstances as the D believed them to be.

• The jury are to use common sense in deciding reasonableness and are not expected to weigh up the nicety of the exact measure of any necessary actions when acting instinctively in the split second, Palmer, now also included in the Criminal Justice and Immigration Act 2008 s76

• if the force is not reasonable, so is disproportionate will not be allowed, Clegg, Martin.

• Crime and Courts Act 2013 – householder must use force that is not grossly disproportionate in the circumstances, Collins

Criminal Justice and Immigration Act 2008 s76

The jury are to use common sense in deciding reasonableness and are not expected to weigh up the nicety of the exact measure of any necessary actions when acting instinctively in the split second.

Clegg

if the force is not reasonable, so is disproportionate will not be allowed

Crime and Courts Act 2013

householder must use force that is not grossly disproportionate in the circumstances, Collins