GENERAL DEFENCES: SELF DEFENCE

  • complete defence- if successful d will not be found guilty

  • applies to all fatal and non-fatal offences

  • under common law (amended by Criminal Justice and Immigration Act 2008, s.76) and statute : s3(1) CJA (Criminal Justice Act) 1967

  • rules under common law:

  1. WAS THE FORCE NECESSARY (SUBJECTIVE)(cause its what d ones try believed then to be s76(3) and

  2. WAS THE DEGREE OF FORCE USED REASONABLY AND PROPORTIONALLY? (OBJECTIVE)

WAS THE FORCE NECESSARY?

R V WILLIAMS (GLADSTONE)

D thought he witnessed a fight. He intervened and injured a man. Principle- D should be judged according to their genuine, mistaken, view of the facts, regardless of whether the mistake was reasonable or unreasonable. Put on a statutory footing, s76 (4) CJaIA 2008: the question of whether the degree of force used by the defendant was reasonable in the circumstances is to be decided by reference to the circumstances as the d believed them to be. But a drunken mistake doesn’t count R V HATTON (s76(5))

R V OYE

D attacked police in a cafe, claiming he was being threatened and ‘rushed’ by evil spirits. Where D has delusions, their mental illness is not to be taken into account in the objective test, unless the reference is to s76(7)

WAS THE DEGREE OF FORCE USED REASONABLY AND PROPORTIONALLY?

R V PRESS AND THOMPSON: 2 ex soldiers suffering with PTSD viciously attacked V’s who started on them. Principle: Whether the level of force used is reasonable is to be assessed objectively- by the jury. s76(7)(a) CJaIA 2008: “a person with a legitimate purpose might or be able to work out the exact measure of any necessary action.”

R V CLEGG: Soldier on duty at checkpoint shot a joyrider after they had driven away. Principle: Proportionate force can become disproportionate, e.g if the danger has passed. (R V MARTIN similar, excessive use of force but householder case- guilty as they were leaving when v’s shot).

HOUSEHOLDER CASES

CJIA 2008 s76(5a) states that in a householder case the degree of force will not be regarded as reasonable only where/if it was ‘grossly disproportionate’

To be a householder case:

  • the force must be used by D while in or partly in a building that is a dwelling

  • V must be a trespasser

  • D must have believed V to be a trespasser

2 tests for householders are:

  1. was the degree of force used by D grossly disproportionate in the circumstances as they believed them to be? (s76(3)) if yes- they cannot use self defence. if no then:

  2. was the degree of force d used nevertheless reasonable in the circumstances they believed them to be? if it was reasonable, they have a defence. if unreasonable, they don’t.

HOUSEHOLDER MAY USE DISPROPORTIONATE FORCE, BUT IT CANT BE GROSSLY DISPROPORTIONATE

R V RAY

D stabbed V during a fight in V’s former home. Grossly disproportionate.

R V HUSSAIN

Intruders in his house tied up him and his family, when D broke free, hm and his brother chased an intruder (V) down the street and attacked him- leaving him with a brain injury and fractured skull. Defence unsuccessful.

PRE-EMPTIVE SRIKES

BECKFORD:

‘A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a preemptive strike.’

R V BIRD:

D’s ex boyfriend showed up to her birthday party antagonising her, she asked him to leave. They got into an argument and she punched him in the face holding a glass, causing him to lose an eye. Successful defence- it is authority that there is no duty to retreat HOWEVER showing an unwillingness to fight is good evidence that D is acting reasonably and may be taken into account, in statute s76(6a).

WHAT IF D IS THE AGGRESSOR

R V RASHFORD

D showed up to V’s house, intending to attack him when V and his friends attacked D out of proportion with D’s aggression. D then stabbed V to death. Successful but CoA held D will only lose defence by being the aggressor throughout the situation.

R V KEANE

If you are the aggressor you can’t use self defence if causing someone to fight back so that you can use more serious violence was your intention.

AG REF NO 2 1983:

D made 10 petrol bombs to defend shop during riot, did do what he could do defend himself . But attack has to be IMMINENT, threat cannot have passed.

REVENGE WONT WORK

CHARACTERISTICS OF THE DEFENDANT

If D is a physical handicap and may not be able to escape an attack and able-bodied person can, the reasonableness of their actions can be taken into account

BUT

If D has a psychiatric condition (this might make him perceive circumstances as being more dangerous than they are)- this cant be taken into account -R V OYE

DENBY COLLINS:

Householder restrained D when he broke into his house, Householder claimed trying to protect his children- put him in headlock - causing him to go unconscious and led D to fall into a coma. Householder can use disproportionate force as long as its not grossly disproportionate- not put on trial.

JURY will look at all factors: time of day, presence of other vulnerable people, whether a weapon was used, the shock of seeing an intruder

AO3

S76(7)(A) that a person acting for a legitimate purpose may not be able to weigh to a nicety the exact measure of any necesarry action