self-defence structure

Intro

D may claim the defence of self-defence [or the prevention of crime], contained in s.76(1) of the Criminal Justice and Immigration Act 2008, which if successful will lead to an acquittal.

1. use of force must be necessary

For force to be justified, it must have been necessary. The defendant is judged in the circumstances as they believed them to be and the jury will consider all surrounding circumstances. There is no duty to retreat when faced with an attack and you can strike the first blow (Bird). If all danger or threat from the original attack is over the defence is not available (Clegg/Hussain). [IF RELEVANT: It is enough that if D apprehends an attack they can take pre-emptive strikes (Beckford/Cousins)., If D apprehends an attack, he may prepare to defend himself (AG's reference No 2 of 1983)., If the defendant makes a mistake and thinks that self-defence is necessary, he or she will be judged on the facts as he or she honestly believed them to be and the defence could still be available, even if the mistake was unreasonable (s.76(4)( R v Williams (Gladstone) (1984)., If the defendant was intoxicated when making the mistake as to the need for self-defence, the defence will not be avaliable (S.76(5))(O'Grady (1987)).] [LINK TO SCENARIO- WAS FORCE NECESSARY AND WHY]

2. force used must be reasonable

Whether the force was used was reasonable (proportionate) is for the jury to decide. In Owino, the test for proving whether force was reasonable was stated as "whether a person used such force as was objectively reasonable in the circumstances as he or she believed them to be" (s.76(3) and s.76(7)). s.76(7) also recognises that a person acting for a legitimate purpose may not be able to weight to a nicety the exact measure of any necessary action (Palmer 1971). Excessive force is not reasonable (Clegg, Hussain, Martin). [IF RELEVANT: In Martin, the CoA rejected D's appeal and agreed that the force he used in killing a burglar by shooting him in the back with a double-barrelled shotgun was excessive and not reasonable] [LINK BACK TO SCENARIO - WAS FORCE OBJECTIVELY REASONABLE? IF NO, WHY? CONSIDER FACTORS -> FORCE DEGREE, THREATENED HARM, SITUATION URGENCY, SURPRISE ELEMENT, D CIRCUMSTANCES].

conclude

Both elements have/have not been established and therefore self-defence will/will not succeed.