Topic 7 (II) Lecture Handout - Self-defence + Crime Prevention (1)

Permitted Conduct in Criminal Law

Overview

• Key Focus: Self-defence and crime prevention as justified conduct in criminal law.

• Learning Outcomes for Students:

  • Understand when 'reasonable force' may be used for self-defence or crime prevention.

  • Assess if the force was 'reasonable' based on circumstances as believed by the defendant (D).

  • Examine the role of D’s instinctive reaction in determining 'reasonable force'.

  • Familiarity with lawful arrest and the powers of arrest without warrant as per s.101(2), CPO.

General Defences

Types of Defences

• Defences based on Reasonable Response:

  • Crime Prevention: Reasonable response to anticipated criminal acts.

  • Self-defence: Reasonable response to aggression or implied threat.

Non-exemption Defences

• These include:

  • Necessity

  • Duress

• Two Key Limbs:

  • Necessity of Response:

    • Factual circumstances prompting D's action.

    • Mistaken belief in the facts: assessment of 'reasonableness'.

  • Reasonableness of Response:

    • Objective assessment of D's response based on circumstances.

    • Consideration of D's subjective factors or characteristics.

Self-defence and Crime Prevention

Use of Reasonable Force

• Rights under Self-defence (SD) and Crime Prevention (CP):

  • Entitlement to use reasonable force against others; includes:

    • Slight touch to lethal force (killing).

    • May extend to property under exceptional circumstances.

  • Force must be assessed as 'reasonable' based on D's perceived circumstances.

Legal Framework

Common Law (Private Defence)

• Self-defence operates as a common law right.

• Crime prevention is regarded as a statutory right (public defence).

• Burden of Proof:

  • Legal burden rests on prosecution to prove D's use of force was unlawful once raised.

  • Justifications for force rely on circumstances believed by D.

Statutory Framework

• CPO s.101A(1):

  • Allows use of reasonable force for crime prevention and lawful arrest.

  • Replaces common law rules regarding justification for force.

Contextual Application

Reasonableness Assessment

• Reasonableness in CP context relates to the D's perception of a threat or criminal behavior.

• Objective evaluation asked: "Was force excessive?"

Crime Prevention Context

• Use of reasonable force may occur when:

  • Preventing a crime before or while it's happening.

  • Must possess a mistaken belief regarding ongoing crime.

Lawful Arrest and Power of Arrest

• Defined under various statutory and common law powers.

• General Historical Power of Arrest:

  • Citizens may arrest suspected offenders (s.101(2), CPO).

  • Police have more extensive powers than citizens; legislated as a means to ensure public good.

Self-defence as a Valid Defence

Essential Elements

• Owino Case Clarification:

  • Jury assesses if D genuinely believed they required to use force for protection.

  • Acknowledges the impact of mistaken belief on decisions made by D.

Possible Exceptions to Self-defence Claims

Intoxicated Belief Exception

• If intoxication caused D's mistaken beliefs regarding aggression, it may negate the self-defence claim.

Unlawful Arrest Response

• If D reasonably believed they were resisting an unlawful arrest, the belief must be factual to sustain a self-defence claim.

Proportionality of Force

Guidelines for Assessing Force

• Key Considerations:

  • Assessments of D's situation and whether the response was proportionate.

  • Claims must be reasonable in light of an unexpected assault.

  • No obligation to retreat, but it may be a factor in assessing reasonableness.

Jurisdictional Considerations

• In instances where escalation occurs (D attacking first), it depends on the level of retaliation.

Characteristics of Defendants

Taking Personal Traits into Account

• Physical characteristics may be considered in force assessments, but psychiatric conditions have strict limitations.

Summary Conclusion

• Self-defence applies to both the individual's protection and that of others, but must remain grounded in reasonable force.

• A defendant’s mistaken beliefs about circumstances can often play a crucial role, even if errant, in determining justification for their actions.