Self Defence

Self Defence

Source (AO3)

Common law defence but has been partly clarified and restated by:

• Criminal Justice and Immigration Act 2008 s.76 - Which addresses reasonable force used in self defence

When can Self Defence be used

Rule (AO1)

Where D admits offence charged but D claims justified in committing offence because:

• Defending self / others - Common law

• Defending property - Criminal Damage Act 1971

• Preventing Crime - Criminal Law Act 1967 s.3

Applies to any crime where force is relevant

Effect of Self defence

(AO1)

Complete defence:

Where successful, D must be acquitted.
If unsuccessful then may be relevant for sentencing

BOP & SOP for self defence
(AO1)

Where D raises the defence (provides evidence that he acted in self defence), P must prove beyond reasonable doubt that either:

• D did not believe he needed to use force

  OR

• That the force used was not reasonable / proportionate

Self Defence - Key principles

Rules (AO1)

1. The trigger - D honestly believes that circumstances exist which make it necessary to use force (SUBJECTIVE)

2. The response to the trigger - The force used by D is reasonable (proportionate) in the circumstances (as perceived by D) (OBJECTIVE)

D’s Belief in Need for Force

Requirements (AO1)

1. Honest, Sober, belief

2. Characteristics of D

Honest, Sober, Belief

Rule (AO1)

• D’s belief in need to use force need not be reasonably held, only honestly held - even if that belief was an unreasonable mistake

• The reasonableness of D’s belief that he needed to use force will be relevant to assessing whether or not, D genuinely held that belief - s.76 (4) (a) of CJ&I A 2008

• An vol. intoxicated mistaken belief will not be permitted - s.76 (5)

Honest, Sober, Belief

Case (AO3)

(R v Gladstone Williams)

D witnessed a man attack a youth. D helped the youth and fought the man. In fact the man had wrestled the youth as the boy mugged someone.

Conviction of s.47 ABH was quashed

Characteristics of D

Rules (AO1)

Evidence of any characteristics or circumstances of D are relevant when assessing what beliefs D genuinely held regarding the necessity to use force, including D’s ability to perceive a threat. E.g. an elderly, anxious or disabled D may consider it necessary to use violence when a regular person may not.

Force used by D must be reasonable

Rules (AO1)

Codified in CJ&I A 2008 s.76

• Objective Test based on D’s (Subjective) belief of the circumstances. - s.76 (3)

• The degree of force used by D is not to be regarded as reasonable in the circumstances as D believed them to be if it was disproportionate in the circumstances - s.76 (6)

A question of fact for the jury.

If D uses excessive, disproportionate force, then defence will fail.

Force used by D must be reasonable

Case (AO3)

(R v Clegg)

Soldier (D)m fired at a car that rammed through checkpoint. D fired 3 shots and then one as the car was driving away which killed a passenger. Car was driven by joyriders. D was G of murder.

Statute factors to be taken into account when assessing reasonableness of degree of force.

Rules (AO1)

Factors set out in s.76

1. D’s belief of circumstances & credibility of claims- s.76 (4) (a)

2. Drunken mistake - s.76 (5)

3. Evidence of D’s belief that he used reasonable force - s.76 (7) (b)

4. Accuracy / precision of D’s assessment of force required - s.76 (7) (a) (weigh to a nicety)

5. Possibility of retreat. - s.76 (6A)

6. Householder cases - s.76 (5A) & Courts and crime Act 2013 s.43 (8A)

D’s belief of circumstances & credibility of claim - s.76 (4)

Principle (AO1)

When assessing reasonableness of response, Jury must base what D genuinely believed the circumstances were, even if belief was a mistake - whether reasonable to make or not

Any belief will be relevant to the jury’s assessment of whether he is telling the truth or not.

Degree of force - Drunken mistake s.76 (5)

Rule (AO1)

If D makes an intoxicated mistake as to the degree of force to be used, this will not be taken into account.

Evidence of D’s belief that he used reasonable force - s.76 (7) (b)

Rule (AO1)

If there is evidence that D did what he honestly and instinctively thought was necessary then this amounts to a strong evidence that only reasonable action was taken by him.

Accuracy / precision of D’s assessment of force required - s.76 (7) (a)

Rule (AO1)

D is not expected in the heat of the moment to be able to ‘weigh to a nicety’ the exact measure of any necessary action. Fear can cloud judgement and so the jury must bear that in mind

Possibility of retreat. - s.76 (6A)

Rule (AO1)

The possibility that D could have retreated is to be considered (so far as relevant) as a factor to be taken into account, rather than as giving rise to a duty to retreat.

Simply because D could have retreated, will not mean that any force he uses will be unreasonable. Ease with which D could have retreated will be relevant in deciding if D believed force was necessary and whether the force used was reasonable

D attempts to retreat

Rule (AO1)

If D demonstrates by words or conduct that he does not want to fight (i.e. walks away) then this is good evidence if he then goes on to use force that he believed he had no choice and was only doing what he thought was necessary i.e. not the aggressor

D does not retreat

Rule (AO1)

D can still claim that he believed it was necessary to use force, even if he had an opportunity to retreat / escape.

Note: If D had good opportunity to escape then may lead jury to find that D did not believe there was any imminent threat to him and did not believe that force was necessary.

D does not retreat

Case (AO3)

(R v Bird)

D had been slapped and pushed by a man. She held a glass in hand at the time and she hit the man in self-defence without realising that she still held the glass.

CA quashed conviction saying that it was unnecessary to show an unwillingness to fight since a D may reasonably react immediately and without first retreating.

Householder cases - s.76 (5A) & Courts and Crime Act 2013 s.43 (8A)

Rule (AO1)

Where a householder uses force to protect himself or others (not property), disproportionate force is not necessarily unreasonable; unless it is grossly disproportionate

Limitations:

• The force was used by D while in a dwelling

• D was not a trespasser at the time the force is used

• D believed V to be in, or entering the building as a trespasser.

Common Law factors to be taken into account when assessing reasonableness of degree of force.

Rules (AO1)

1. D’s own characteristics

2. Pre-emptive Strike

3. Where D initiates aggression but V overreacts

4. Where D engineers an attack by V.

D’s own characteristics

Rule (AO1)

Only D’s physical characteristics may be relevant in assessing whether the degree of force was reasonable in the circumstances including age, size, and strength.

Psychiatric conditions such as paranoia will not be taken into account when assessing reasonable degree of force. As reasonable person would not have those conditions

D’s own characteristics

Case (AO3)

(Anthony Martin)

Psychiatric conditions not included

Pre-emptive Strike

Rule (AO1)

D may act/use force if he honestly anticipates imminent attack

Pre-emptive Strike

Case (AO3)

(Attorney-General’s Reference [No 2 of 1984])

D made petrol bombs after his shop was damaged and looted from riots. They were never used but kept purely as a last resort.

Found NG of the offence charged as self-defence was successful.

Where D initiates aggression but V overreacts

Rule (AO1)

D does not lose self-defence simply due to initiating the confrontation. Where V responds to attack by D disproportionately, self-defence may be available.

i.e. D hits V but then V pulls out a knife on D. D switches from aggressor to defender.

Where D initiates aggression but V overreacts

Case (AO3)

(R v Harvey)

Where D engineers an attack by V

Rule (AO1)

Where D deliberately provokes (engineers) an attack by V to which D acts in self-defence. Self-defence is not available.

Where D engineers an attack by V

Case (AO3)

(R v Rashford)