Self-Defence: Principles and Application

Defences

Self-Defence

  • Self-defence is a common law defence.
  • Private defence.
  • Public defence: s3 Criminal Law Act 1967.
  • Can result in acquittal if pleaded successfully.

Principles of Self-Defence

  • As Lord Morris stated in Palmer [1971] AC 814: "It is both good law and good sense that a man who is attacked may defend himself… he may do, but only do, what is reasonably necessary."
  • Ashworth notes the historical importance of self-defence in English common law due to the absence of organized policing and the commonality of carrying deadly weapons.

Legislation: Criminal Justice and Immigration Act 2008, s76

  • Addresses reasonable force for self-defence.
  • Applies when determining if the degree of force used by the defendant (D) against the victim (V) was reasonable.
  • Covers common law defence of self-defence and defence of property, and defences under s3(1) of the Criminal Law Act 1967.

Criminal Law Act 1967, s 3

  • Outlines the use of force in making an arrest.
  • A person may use reasonable force in the prevention of crime or in effecting a lawful arrest.
  • Replaces common law rules regarding justified force for the specified purposes.

Key Elements of Self-Defence

  • Exclusion: Self-defence can potentially apply across all offence categories, but it requires an element of force (Blake v DPP [1993] Crim LR 586).
  • Prior fault can impact the ability to use self-defense.
  • Trigger: Concerns the necessity of force. The question if force was necessary is subjective (Gladstone Williams (1984) 87 Cr App R 276).
  • Force can be pre-emptive, and there is no duty to retreat.
  • Response: Involves the reasonable degree of force. The force used must be objectively reasonable based on the subjective facts as the defendant believed them to be (Martin [2001] EWCA Crim 2245).
  • Focus is on the force used, not the harm caused, considering all circumstances.
  • Palmer [1971] AC 814 and s76(7)(a) CJIA 2008 acknowledge that a person defending themselves cannot precisely measure their necessary defensive action.

Exceptions to Self-Defence

Householder cases
  • S 76(5A) CJIA: In householder cases, force is not reasonable if grossly disproportionate (R (Collins) v Secretary of State for Justice [2016] EWHC 33 Admin, Ray (Steven) [2017] EWCA Crim 1391).
Intoxicated defendants
  • S 76 CJIA:
    • The reasonableness of a belief is relevant to whether the defendant genuinely held it.
    • If the belief was genuinely held, the defendant can rely on it, even if mistaken.
    • However, a mistaken belief due to voluntary intoxication cannot be relied upon (Hatton [2005] EWCA Crim 2951).
Insanity/Delusion
  • Consideration of insane and non-insane delusions (Taj [2018] EWCA Crim 1743).

Self-Defence Controversy

  • Article 2 ECHR (right to life): Force should be no more than absolutely necessary.
  • S 3 Criminal Law Act 1967: Force should be reasonable in the circumstances.
  • R (Bennett) v HM Coroner for Inner London [2006] EWHC Admin 196 clarifies that the ECtHR has considered English law on self-defence and found no incompatibility with Article 2.

Summary of Self-Defence Principles

  • Must involve force.
  • Must be objectively reasonable based on the subjective facts as the defendant believed them to be.
  • All circumstances must be considered.