Defense of Self-Defense
Overview and Definitions of Self-Defense
Self-defense is a complete defense available to individuals who use force to defend themselves or another person from an unjustified attack.
The term "self-defense" is considered somewhat misleading because the defense also applies when the defendant acts to protect a third party.
There is no academic or legal consensus on the name of the defense; textbooks refer to it variably as: - Self-defense - Private defense - Lawful defense
The phrase "self-defense" is utilized primarily because it is the term most commonly used by the public, and public response has significantly influenced how the defense has been applied and reformed in recent times.
The doctrine is a subject of significant media attention, which often lacks accuracy, leading to discussions on how public perception influences criminal law reform.
The Dual Nature of the Defense: Private vs. Public
The doctrine of self-defense encompasses two distinct legal defenses: - Private Defense: Stemming from the common law, this occurs when a defendant uses force to protect themselves or another from physical harm, or for the protection of property. This principle was reiterated in the case of Duffy. - Public Defense: Found under of the Criminal Law Act 1967. This provides a defense where the defendant uses force to prevent a crime or assist in a lawful arrest. For this defense to apply, a crime must have actually occurred.
Distinction between self-defense and property protection: - Self-defense requiring force against a person is distinct from damaging property to protect property. - If property is damaged to protect other property, it falls under the defense of lawful excuse under of the Criminal Damage Act 1971.
Self-defense can only be claimed if the offense the defendant is defending against involves force. It is typically applied to offenses such as: - Murder - False imprisonment - Offenses against the person
Case Study: Blake v DPP - The defendant, a vicar, used a marker pen to write biblical quotes on a pillar at the Houses of Parliament as a protest against military force in Iraq and Kuwait. - He claimed self-defense (acting against the threat of force) and lawful excuse under of the Criminal Damage Act 1971. - The court held he could not rely on self-defense because the offense he was "defending" against did not involve actual force.
Statutory Framework and Codification
In most cases, private and public defenses arise simultaneously (e.g., using force against a burglar).
The rules for both defenses have been codified under of the Criminal Justice and Immigration Act 2008.
of the Criminal Justice and Immigration Act 2008 (as amended by of the Crime and Courts Act 2013) clarifies that, except for householder cases, the statute is intended to codify existing common law rather than change it.
Burden of Proof: Once the defendant raises self-defense, the burden of proof lies with the prosecution to disprove it.
The jury must address two fundamental questions: 1. Necessity: Did the defendant believe, or may they have believed, that it was necessary to use force to defend themselves/others from attack, protect property, or prevent a crime? 2. Reasonableness: Was the amount of force used reasonable in the circumstances, including the dangers as the defendant believed them to be?
These two issues are often referred to in textbooks as Trigger and Response.
The Trigger: Necessity and the Source of Threat
Traditionally, the threat must be posed by the victim for self-defense to apply.
Case Study: Hitchens - The defendant assaulted the victim to prevent her from allowing a man into a flat, believing that the man would then assault the defendant. - The trial judge initially held the defense was unavailable because the threat didn't come from the person being hit. - The Court of Appeal allowed the appeal, ruling that self-defense can extend to an innocent third party if necessary to prevent a crime (in this case, the impending assault by the visitor).
Prior Fault: A victim is not considered a threat if the defendant is at "prior fault." - Prior fault occurs when a defendant consciously manipulates events to create a situation where they must use force. - Case Study: Rashford: The defendant stabbed a victim after an argument. The court found he had deliberately manipulated events for revenge and was thus at prior fault. - However, self-defense is not as narrowly interpreted as intoxication. A defendant may still rely on the defense even if they started the fight, provided they didn't consciously manipulate the events to use force. - Case Study: Keene: A fight broke out at a petrol station after the defendant rudely told someone not to smoke. The victim punched the defendant, and the defendant punched back, causing serious head injuries on the tarmac. The Court of Appeal ruled that triggering the event didn't automatically preclude self-defense; it was a matter for the jury.
The Defendant's Belief and Subjective/Objective Tests
The court assesses the facts as the defendant genuinely believed them to be (a subjective limb).
Case Study: Gladstone Williams - The defendant saw a man (the victim) apprehending and hitting a youth. The youth was calling for help. The defendant punched the victim to protect the youth. - In reality, the victim was lawfully detaining a thief. The court held that the defendant’s genuine mistake was enough to justify self-defense, regardless of whether the mistake was reasonable.
Exclusions to the Subjective Belief Test: - Intoxicated Mistakes: of the Criminal Justice and Immigration Act 2008 (codifying Hatton) explicitly states that a mistaken belief based on the voluntary consumption of alcohol cannot be used as the basis for self-defense. - Insanity and Delusions: Mistakes caused by mental illness or paranoid delusions are excluded. - Case Study: Taj: Reinforced the exclusion of intoxicated/delusional beliefs. - Case Study: Oye: The defendant attacked police, believing they were evil spirits out to kill him. The Court of Appeal rejected self-defense, though he was allowed to plead not guilty by reason of insanity.
The Response: Reasonable Force
The assessment of the "response" relates to whether the force used was reasonable in the circumstances as the defendant believed them to be.
Force vs. Harm: The legal focus is on the force used by the defendant, not the resulting harm to the victim. "Force" is treated as an ordinary English word with no legal definition.
Objective Assessment: The jury objectively assesses if the force was reasonable but does so based on the defendant's genuine belief ().
Preemptive Strikes and Imminence: - A defendant can act preemptively. - Case Study: Dublin and Armstrong: The defendant threw a stone at police during a riot, claiming she believed they would act unlawfully. The court held the defense was unavailable because the threat was not imminent. The imminence requirement prevents aggressive force from being labeled as defensive.
Duty to Retreat: There is no legal duty to retreat before using force. - Case Study: Duff: The defendant went to a restaurant knowing a drunk, violent rival was there. A fight ensued. The prosecution argued he should have left immediately upon seeing the rival. The appeal was allowed, confirming no duty to retreat. This is codified in .
The "Acting in the Moment" Principle: - Case Study: Palmer: Lord Morris emphasized that a defendant acting in the heat of the moment may not be able to "weigh to a nicety" the exact measure of their defensive action. This recognition of human nature is codified in .
Householder Cases and Special Provisions
Media and political pressure regarding householders defending against burglars led to specific reforms following the case of Tony Martin (). - Martin shot two burglars at his remote farmhouse ("Bleak House"), killing one. He was convicted of murder (later reduced to manslaughter on grounds of diminished responsibility) but was denied self-defense because his force was deemed disproportionate.
The Legal Amendment: of the Crime and Courts Act 2013 amended the Criminal Justice and Immigration Act 2008 by adding .
Definition of a Householder: - Case Study: Cheeseman: The defendant thought a guest (a fellow serviceman) had become a trespasser after being told to leave. Even though the victim was not legally a trespasser, the defendant was treated as a householder because the court focuses on the defendant's belief regarding the intruder's status.
The Householder Test: - In non-householder cases, force must simply be "reasonable." - In householder cases, force is permissible unless it is "grossly disproportionate." - Politicians (e.g., Chris Grayling) suggested this allows "anything up until" grossly disproportionate force, but the courts have interpreted this more narrowly.
Case Study: Collins - A householder held a burglar in a headlock, causing permanent injury. The CPS initially didn't prosecute, believing any force not "grossly disproportionate" was automatically lawful. - The Divisional Court and Sir Brian Leverson disagreed, stating that (common law reasonableness) still applies.
Case Study: Ray: The Court of Appeal approved Collins, noting the law slightly refined but did not fundamentally change the common law.
Current Two-Stage Test for Householders: 1. Was the degree of force used grossly disproportionate in the circumstances as the defendant believed them to be? If yes, the defense fails. 2. If no, the jury must then ask: was the degree of force reasonable in the circumstances as the defendant believed them to be?
Despite these changes, legal practitioners (as noted by "The Secret Barrister") often feel the practical application of the law has not changed significantly, though it has become more complex and problematic.