Criminal law 1 - Defences (public and private)

What is a private defence?

This is where:

1) the defendant was or believed that they were facing a threat from the victim

2) the defendant used a level of force against the threat, or what they thought was a threat, which was reasonable in the circumstances

A complete defence is allowed for this, if a person used it to defend themselves or another person from an unjustified attack

What are the two separate legal sources for this defence?

1) This is at common law where a person will have the defence is they are defending themselves or someone else from an attack

2) Section 3 of the Criminal Law Act 1967

• a person may use force if its reasonable to prevent the crime or in assisting the lawful arrest of offenders or suspected offenders or of persons unlawfully at large

• subsection (1) replaces the rules of the common law when the force was used for a purpose mentioned in the subsection is justified by that purpose

What needs to be shown to establish the defence?

• section 76 of the Criminal Justice and Immigration Act 2008 - parliament tried to clarify some elements of the defence

Element of private defences:

• The victim must pose a threat

• The threat must be unjustified

• The use of force must be reasonable

• The amount of force used must be reasonable

• The defendant must be acting in order to defend themselves or another or property

What is meant by “the victim must pose a threat”?

R v Hitchens (2011)

• Hitchens was charged with assault on Miss Brown

• His defence was self-defence as he assaulted her to prevent her allowing a man into her flat, who he believed would assault him

• The judge decided that the defendant couldn’t rely on self-defence where the assault was against an innocent person to prevent an attack by a third party

Lord Justice Gross

• "As ever that the defence is capable of being advances is of course a very different question from that of whether it would succeed”

Appeal allowed

What is meant by “the threat must be justified”?

• Even if the attacker is not committing an offence, this doesn’t prevent a defendant relying on self-defence ie a D can use force against a sleep-walker who is attacking them even if tho they were not committing a crime - but the threat must be unjust

What is meant by “the use of force must be reasonable”?

The key elements of the defence have been shown in this case

R v Martin (Anthony) 2001

• He shot two men who entered his isolated home at night

• He had been burgled several times before

• Both men were hurt and one died from it

• Martin was convicted of murder. He tried to appeal by stating that he was suffering from a psychiatric condition where he needed to show that he was suffering from diminished responsibility at the time of the killing and that due to his condition he was more likely to believe that he would be attacked than the ordinary person

Lord Woolf

• It’s for the jury to decide amount of force which is reasonable

• What’s key is whether a defendant to a murder charge should be convicted of murder if he was acting in self defence, but used excessive force

• The evidence of the psychiatric condition wasn’t provided at the first trial because they evidence was not available to them then. Mr Martin is allowed to rely on this evidence on the appeal

Conviction for murder quashed and conviction for manslaughter was given

What were the amendments made to section 76 of the Criminal Justice and Immigration Act 2008?

This means that it must have been reasonable for the defendant to use force rather than attempt to escape the threat

• section 76(6a) makes it clear that the defendant doesn’t have a duty to retreat so if the jury thinks it would have been reasonable to retreat, this doesn’t prevent the defendant from relying on this defence

• the law allows the defendant to take a pre-emptive strike if its deemed reasonable

• its not necessary to show that the attack is imminent

What is a non-householder case?

• This is where the defendant is not using self-defence inside their home

• The defendant can only use this defence if the level of force was reasonable compared to the perceived threat

• The Court of Appeal in Oye (2013) stated that the question is if a reasonable person believes that the level of force was reasonable, not if the defendant thought it was

What is a householder case?

• This is where a defendant is using self-defence within their home against a trespasser

• It doesn’t matter if the victim isn’t actually a trespasser, it just needs to be shown that the defendant genuinely believed they were

• In these types of case, the force used by a defendant will only be seen as unreasonable if its grossly disproportionate

• In R (Collins) V Secretary of State for Justice (2016) Sir Brian Leveson P stated that householder cases should be treated in a similar way to other cases which focuses on if the degree of force used was reasonable

Case of R v Steven Ray (2017)

Rory Hemmings lived in Sheffield with Kirsty Allen and their children. Ms Allen had a relationship with Steven Ray. Hemmings found him in the house. A fight broke out and Ray stabbed Hemmings who then died. Ray claimed that he stabbed him only as he feared that Hemming would stab him. He convicted of murder then tried to appeal as he claimed the judge failed to correctly direct the jury on the idea of self-defence

His appeal was dismissed

What is the difference between householder and non-householder cases?

A householder case altered the common law so a degree of force used that is disproportionate can be seen as a reasonable. Whereas for non-householder cases if the degree of force used is not seen as reasonable if it was disproportionate

What is the Dadson principle (1850)?

A defendant who has lost self-control can’t claim to be acting in self-defence

This is part of the Dadson principle which claims that “the defendant cannot rely on the justifying circumstances of their actions of which they were not aware”

What about defendants who think they are being attacked but are not?

Section 76(3) makes it obvious that the defendant is judged on the facts as they believed them to be, it doesn’t need to be shown that there were reasonable grounds for this belief

The jury must ask on the facts as believed by the defendant if the level of force was reasonable

Section 76(5) of the Criminal Justice and Immigration Act 2008 states that a person who is drunk and so genuinely believes that they are being attacked etc cannot use this private defence

Case of R v Oye (2013) - this considered what should happen if the defendant believed they were being attacked and these beliefs came from insane delusions

Oye had no previous convictions and was a respectable person. He was found in the staff room twitching in a weird manner. The police arrived and he threw crockery at them and caused a minor injury. He was taken to the police station and tried to escape which led to him punching 2 police officers

He was convicted of affray and causing GBH under section 20 of the offences against the person act 1861

At trial, he claimed that he was being pursued by evil spirts and thought that the police were evil. The question was if he should be able to rely on self defence as his delusions led him to think he was being attacked

Lord Justice Davis:

• If we did allow believes of attack which are founded from delusions this could have bad implications, for example it could mean the more insanely deluded someone is in using violence for self defence, the more likely they will be acquitted

• Decision of R v Keane & McGrath (20120) states that an insane person can’t set the standards of reasonableness in force being used

• He attacked the evil spirts, but not to defend himself

• Rejected the defence of self defence, but was found not guilty for other reasons

Case of R v Taj (2018) - drink and drugs in relation to self defence

He was convicted of attempted murder of Mohammed Awain. At the time Taj was suffering from a drug and drink induced psychotic, which led to paranoia.

He saw Awain’s car on the side of the road with a broken car, Taj believed that he Awain was suspicious and phoned the police to alert that there could be a bomb threat. The police came and saw he was innocent so left

Taj believed that he was suspicious and hit him with a tyre level etc

He was charged with attempted murder and he tried to rely on self-defence that he genuinely believed that he was a terrorist. The judge ruled that he couldn’t rely on this defence as his mistake was attributable to his intoxication

Sir Brian Leveson

• “Attributable to intoxication” in section 76(5) is broad enough to encompass both a mistaken state of mind due to being drunk/ intoxicated and where a defendant is not drunk/ intoxicated at the time but the short term effects of the substance led to subsequent episodes ie paranoia

Appeal dismissed

What are self-induced private defences?

This is the idea that if the defendant caused the attack in the first place then they may not be able to use the defence. The question for the jury is if the defendant’s use of force was reasonable taking into account the fact that they started the fight.

Case of R v Keane (2010)

After going to pubs Keane was given a lift home by the victim and 2 women. Keane insulted one of the women. A fight began between Keane and the victim which led to the victim suffering GBH. On appeal the question was if the judge had correctly directed the jury on if the defendant could rely on self-defence if he was the cause of the violence

Lord Justice Hughes

• “The reason why it is not the law is that underlying the law of self-defence is the common-sense morality that what is not unlawful is force which is reasonably necessary”

Appeal dismissed

Has the Human Rights Act 1998 changed the law?

Andrew Ashworth has suggested that the law on private defences may be challenged due to the Human Rights Act ie due to Art 2 of the convention concerning a right to life

But Art 2 makes it clear in 2(a) that the taking of life is permissible if in the defence of a person.

It was argued in Collins v Secretary of State (2016) that the householder law is incompatible with Art 2 of the ECHR as its allowing a householder to kill. But the Divisional Court found that the law doesn’t allow a grossly disproportionate use of force so its compatible