Criminal Law - Defences: Self Defence

Syllabus: Semester 2

Assessment 2 focuses on defenses, specifically topics 6 and 7.
Assessment 2 is an open-book online exam that includes a problem question of 1,000 words.
Theft and Fraud (30 credits only) are covered in weeks 8 and 9.
Theft and Fraud includes a short problem question of 500 words (30 credits only).

Schedule: Semester 2 (Spring 2025)

Week 1 (January 27, 2025): Introduction to Semester 2 and Intoxication. No tutorials.
Week 2 (February 3, 2025): Intoxication and Self Defence. Tutorial 6 focuses on answering problem questions (even groups).
Week 3 (February 10, 2025): Self Defence and Assessment Support. Tutorial 6 focuses on answering problem questions (odd groups).
Week 4 (February 17, 2025): Theft (30 credits only). Tutorial 7 focuses on defenses (even groups).
Week 5 (February 24, 2025): Theft (30 credits only). No lecture. Tutorial 7 focuses on defenses (odd groups).
Week 6 (March 3, 2025): Fraud (30 credits only). Tutorial 8 focuses on theft (30 credits only; even groups).
Week 7 (March 10, 2025): Fraud (30 credits only). No lecture. Tutorial 8 focuses on theft (30 credits only; odd groups).
Week 8 (March 17, 2025): Assessment Preparation. Tutorial 9 focuses on fraud (30 credits only; even groups).
Week 9 (March 24, 2025): No lecture. Tutorial 9 focuses on fraud (30 credits only; odd groups).
Week 10 (March 31, 2025): No lecture. No tutorials.
Week 11 (April 7, 2025): No lecture. No tutorials.
Easter recess: Saturday 12 April – Sunday 4 May 2025
Spring examination period: Monday 12 May – Friday 13 June 2025

Assessment Details

Section B is assessed by a problem question at the end of the course, totaling 1,000 words.
The question will cover intoxication and self-defense.
Tutorial 7 provides peer and tutor feedback on a draft plan for a specimen problem question on intoxication/self-defense.
Plans should be up to 350 words in bullet point form with annotations explaining the points made in the introduction, main body, and conclusion.
Include relevant cases and apply them to the facts, ensuring to work through each element in turn.

Recap: The Basic Criminal Formula

The foundational principle in criminal law is:
$Actus Reus + Mens Rea - Defence = Crime$

There are three types of defenses:

General Defences (e.g., self-defense).
Capacity Defences (e.g., insanity).
Special Defences.

Defenses: Justifications vs. Excuses

Justifications: The defendant admits responsibility for the act but claims it was not wrong because the action was justified (e.g., self-defense).
Excuses: The defendant admits the act was wrong but should not incur criminal liability because the conduct should be excused in the circumstances (e.g., duress).
A justification negates the actus reus because the plea renders the act not wrongful.
An excuse does not affect the actus reus; it is still a wrongful act, but the conduct can be excused due to mitigating factors.
In both justifications and excuses, the defendant is not held liable, but the rationale differs.
Self-defense is a justification, while duress is an excuse.
Duress will not be covered for assessment purposes; the focus is on self-defense and intoxication.

Self Defence: Historical Context

John Locke (1632-1704) stated, "Every Man has a Property in his own Person. This no Body has any Right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his."
Defenses in law enable individuals to invoke 'property rights' over their bodies.
Self-defense and defense of property are treated similarly in law.
Glanville Williams noted that in early times, homicide in self-defence required a pardon, but by the reign of Henry VIII, such homicides resulted in acquittal.
Thomas Hobbes described self-defense as an 'inalienable right' in Leviathan (1651).
'Self defence’ is typically considered to have appeared in English common law for the first time in Semayne’s Case in 1604
Alan Norrie calls self-defence as “one of the oldest legal categories, and one of the most problematic”

The Law on Self Defence

Glanville Williams: “We may start with the generalisation that self-defence is, within limits, an excuse for any crime against the person or property”.
Beckford v The Queen [1988] AC 130: “A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property.”
Palmer v R [1971] AC 814 at 832 per Lord Morris: “It is both good law and common sense that a man attacked may defend himself. It is both good law and common sense that he may do, but may only do, what is reasonably necessary. But everything will depend on the particular facts and circumstances. Of these a jury can decide.”

Sources of the Law

Common law
Criminal Justice Act 1967, section 3
Criminal Justice and Immigration Act 2008, section 76; as amended by Legal Aid, Sentencing and Punishment of Offenders Act 2012 s 148 and Crime and Courts Act 2013 s43
'Private defence' developed at common law, allowing the use of force to protect oneself or another from harm or to protect property.
'Public defence' was set out by Criminal Justice Act 1967, s3, allowing the use of force to prevent a crime or effect or assist lawful arrest.
These were integrated through case law and are now recognized as a defence under section 76(2) of the Criminal Justice and Immigration Act 2008.
Section 3 Criminal Law Act 1967 introduced the statutory defence of crime prevention.
Self-defence must be in response to imminent danger (R v Owino [1996] 2 Cr App R 128), and force must be reasonable (Beckford v R [1988] AC 130).
Section 76(3) of the Criminal Justice and Immigration Act 2008 states that whether force is 'reasonable' is decided by reference to the circumstances as the defendant believed them to be (Palmer v R).
The response must be proportionate; e.g., using a knife against fists would be disproportionate.
R v Cousins [1982] 2 All ER 115: The common law defence extended to the use of force in order to prevent an attack on another, especially if the other is close to, or family of, the person using the force.

Two Main Elements: Trigger and Response

The trigger describes the situation that must occur to justify the use of the defence.
The response describes what actions are lawful once the trigger situation has arisen.
The defendant must believe that the circumstances necessitate the use of force.
This is a subjective test based on the circumstances as the defendant believed them to be (Gladstone Williams [1987] 3 All ER 411, Beckford v R [1987] UKPC).
A mistake of observation (misreading the situation and wrongly deciding force is necessary) needs only be honest, not necessarily reasonable.
The amount of force used must be reasonable in the circumstances as the defendant believed them to be.
This is an objective test for the jury to decide what was reasonable (Palmer v R [1971] AC 814).
A mistake of judgement (correctly reading the situation but overestimating the necessary force) must be both honest and reasonable.
The jury must consider the defendant’s position, stresses, and time constraints and should not be unduly strict.
Therefore, the level of force is assessed objectively, but the circumstances are assessed subjectively. Objective Test with a Subjective Twist.
R v Owino [1996] 2 Cr App R 128: ‘a person may use such force as is (objectively) reasonable in the circumstances as he (subjectively) believes them to be’.
Palmer v R [1971] AC 814 [PC]: ‘It will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken’.
R v Martin (Anthony) [2002] Crim LR 136: The defence is denied where the degree of force is unreasonable. Shooting a burglar in the back while they are running away is not reasonable or proportionate.

Criminal Justice and Immigration Act 2008, Section 76

Section 76(3) confirms the common law position on the trigger, stating the degree of force is decided by reference to the circumstances as the defendant believed them to be.
Section 76(6) confirms the common law position on the response, stating the degree of force is not reasonable if it was disproportionate in those circumstances.
Section 76(7) states that when deciding the question in subsection (3), considerations include that a person acting for a legitimate purpose may not be able to weigh the exact measure of necessary action, and evidence of honesty and instinct constitutes strong evidence of reasonable action.
R v K; R v M [2010] EWCA Crim 2514: Hughes LJ clarified that section 76 does not alter existing law, exhaustively state self-defence law, or require exhaustive summing-up.
Section 76(6A) considers the possibility of retreat as a factor but not as a duty.
Section 76(5A) strengthens the law for householders defending themselves or others from intruders, stating that disproportionate force can be reasonable but cannot be grossly disproportionate.
R (Collins) v Secretary of State for Justice [2016] EWHC 33 (Admin): Where force is disproportionate in a householder case this enables a jury to find that it was reasonable but does not mandate that finding.
R v Ray [2017] EWCA Crim 1391 Upheld Collins. Where non-householder uses disproportionate force then it is always unreasonable; the same force from a householder is not determinative of reasonableness

Problem Question Tips

Demonstrate knowledge of self-defence law: the source(s) of law; the trigger; the response.
Draw on relevant case law, especially when assessing whether force is reasonable.
Conclude whether the defendant can rely on self-defence based on the facts.
Determine if self-defence is applicable and identify relevant cases.

Recap: Self Defence

Test One: The Trigger
- The defendant must believe that the circumstances render it necessary for them to use force.
Test Two: The Response
- The force used must have been objectively reasonable on the facts as the defendant subjectively believed them to be.