EVAL: SELF DEFENCE

point 1: “all or nothing defence”

  • excessive force in self-defence does not reduce liability from murder to manslaughter CLEGG is this fair? The Law Commission looked at this but decided not to change it instead proposed to abolish provocation and replace with loss of control

point 2: “lack of structure”

  • the law is contained in common law and so many different statutes so it can be confusing to know where to actually find law

  • common law tests- subj and obj

  • s.3 criminal law act 1967

  • s.76 criminal justice and immigration act 2008

  • crime and courts act 2013

point 3: householder cases

  • variations in outcomes of cases

  • e.g Munir Hussain and brother Tokeer could not use the defence but Vincent Cooke could

  • Denby Collins case- householder was no prosecuted

  • Issue is that a householder can use self defence if they acted disproportionally but cannot use it if they acted in a grossly disproportionate way- what does this mean? (R V RAY) Judge directs jury

point 4: subjective test s76

SUBJECTIVE

  • did D believe that he was entitled to use force?

  • what happens where d has made a mistake? Can use self defence still as long as mistake was genuine and honest even if it is unreasonable- GLADSTONE WILLIAMS

OBJECTIVE

  • on the facts as D believed them to be did he use reasonable force or was the force used reasonable or excessive?

  • question for the jury

  • d’s physical but not mental characteristics are taken into account

  • R V MARTIN AND R V OYE

point 5: intoxicated mistakes and self-defence

  • honest mistake by a drunk d will not allow them self defence r v o’grady

point 5: pre emptive strikes


point 6: reforms

  • do governments respond too quickly to populist concerns

  • problem of vigilante justice

  • tony martin “cause celebre” for campaigners life sentence

  • the crime and courts act 2013 applies to those who use self defence in their homes/dwellings- why does it not apply to those who are on the street?

  • seems to have been a haphazard development of the law in this area” lots of different statutes and cases


LAW COMISSION 20004

  • report on partial defences to murder saiid that ‘all or nothing’ can produce unsatisfactory results in murder cases. Battered woman and abused children cannot use it