LAW- self defence and evaluation
A01 and A02
The basic principles of self-defence are set out in Palmer V R 1971, where the court said “It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only do, what is reasonably necessary.” Lord Morris
Self defence is a complete defence, meaning it leads to a full acquittal. This law is contained in many sources:
common law(made by judges) defence of self defence, the defence of another and defence of property are as amended by the Criminal Justice and Immigration Act 2008(consolidating act)— clarified law that force that was reasonable in the circumstances can be used.
s3 (1) of Criminal Law Act 1967— “a person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of powers unlawfully at large.
crime and courts act 2013 brought in laws on self defence
It can be used for any offences, even murder.
Two questions to be asked on whether the force was reasonable
SUBJECTIVE- was it necessary to use any degree of force? s76(3) CJaIA 2008
OBJECTIVE- was the force used reasonable or proportionate? s76(7)
CJaIA 2008
Both must be proved to use the defence.
The burden of proof is on prosecution to show beyond a reasonable doubt that D was not acting under self defence.
SUBJECTIVE- was it necessary to use any degree of force? s76 (3)
D will be judged according to the facts he or she genuinely believed.
R v Williams (Gladstone): Mistake
D was on a bus when he thought he saw a man assaulting a youth in the street. In fact, the man was trying to arrest the youth for mugging an old lady. D got off the bus and asked what was happening and the man said that he was a police officer arresting the youth however he could not show D his police card. There was then a struggle where the policeman got injured. The court quashed D’s conviction as the jury should have been told that if they thought the mistake was genuine, they should judge D according to his genuine, mistaken view of the facts, regardless of whether this mistake was reasonable or unreasonable.
S76 of CJaIA 2008 puts the decision in R v Williams (Gladstone) onto a statutory footing, stating that in s76(3), the question whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as the D believed them to be. In s76 (4) it states:
“If D claims to have held a particular belief as regards the existence of any circumstances-
(a) the reasonableness or otherwise of that belief is relevant to the question whether the defendant genuinely held it but;
(b)if it is determined that the defendant did genuinely hold it, the defendant is entitled to rely on it for the purposes of the subsection (3) , whether or not-
(i) it was mistaken, or
(ii)(if it was mistaken) the mistake was a reasonable one to have made
so this subsection basically is whether the belief was an honest one, not whether it was a reasonable one.
S76 (5) states if D made the mistake because they were intoxicated, then they cannot rely on their mistaken belief. Therefore the defence will not be available.
R v Lipman: drunken mistake
The appellant had taken some LSD. He was hallucinating and believed he was being attacked by snakes and descending to the centre of the earth. Whilst in this state he killed a girl by cramming bed sheets into her mouth .His intoxication could be used to demonstrate that he lacked the MR for murder as murder is a crime of specific intent. His intoxication could not be a defence to manslaughter as it is a crime of basic intent.
It is not appropriate to look at D’s psychiatric condition (if they have one), even if the D’s genuine belief including delusions possibly resulting from a condition, like PTSD. For example R v Martin and R v Oye.
A person does not have to wait until they are attacked to use force. So pre-emptive strikes are allowed.
R v Bird: shows you don’t need to show you could have retreated
D’s ex boyfriend turned up at her birthday party with his new girlfriend and there was an argument where he was asked to leave. He did but returned and there was another argument and he was injured. D argued that she acted in self defence. The court ruled that while withdrawing or showing an unwillingness to fight is good evidence that D is acting reasonably and in good faith, there is no requirement to show an unwillingness to fight or a willingness to retreat, but it was a factor to be taken into account. Conviction quashed.
This principle is now set out in s76 (6A) of the CJaIA 2008, makes it clear that a person is not under duty to retreat when acting for a legitimate purpose however the possibility that the person could have retreated should be considered as a relevant factor in deciding whether the degree of force was necessary.
In the AG Ref (No. 2 of 1983) case it said you can make preparation so preparatory actions can be justified if the force used is deemed reasonable in the circumstances as the defendant believed them to be.
If D is the initial aggressor, they may use force if V’s response is wholly disproportionate and seriously threatens D. But this will only be a defence if it wasn’t D’s aim all long to give themselves an excuse to use much more serious violence.
R v Rashford: Initial aggressor
D sought out V intending to attack him after an earlier dispute but V and his friends responded out of proportion to D’s aggression. Defence was successful. Court held D will only lose defence by being the aggressor throughout the situation. Whether D can rely on self defence depends on whether they feared they were in immediate danger and if the violence used was no more than necessary to protect themselves from serious injury or death.
WAS THE FORCE USED PROPORTIONATE- OBJECTIVE s76 (7)
The reasonableness of the force used is considered on the facts as they were or, if D made a mistake, on the facts as D genuinely believed them to be. Basic rule set out in s76(6) of CJaIA 2008 which states that, except in a ‘householder’ case, force which is disproportionate will not be reasonable. This gives additional protection to a householder who, e.g, tackles a burglar. Objective test (referred to in R v Oye), balances risk of harm to D with risk of harm to V but takes into account that:
s76 (7)(a)- a person with a legitimate purpose might not be able to work out the exact measure of any necessary action, and
s76 (7)(b)- evidence of them only doing what they honestly and instinctively thought was necessary for a legitimate purpose shows that they took reasonable action .
R v Oye: Objective Test s76(6) CJIA 2008:
The court held that for self-defence, the defendant must have an honest belief that force was necessary to defend themselves. However, this belief must be genuinely held but it does not have to be reasonable.
No simple reckoning of equality: It may be proportionate for D to use weapon in extreme cases even if V is unarmed and has attacked without a weapon. Initially proportionate force can develop into disproportionate force, e.g if D doesn’t stop attacking once danger has passed or been removed— defence lost entirely when force is used disproportionately.
R v Clegg: Excessive force/threat had passed:
D was a soldier on duty at a checkpoint in Northern Ireland doing the Troubles and had orders to stop joyriders. A car came towards the checkpoint at speed with its headlights full on. One of the soldiers shouted for car to stop but it didn’t and so D fired three shots at windscreen of car and one as it has passed. The final shot hit a passenger in the back and killed her. As the evidence showed that the fatal shot had been fired as the car had gone past, D could not use the defence.
R v Martin: Threat had passed, characteristics, excessive force
Two burglars broke into D’s isolated farmhouse. He fired several shots at them; one of the intruders died and the other suffered serious injuries. D claimed he had shot in self-defence however evidence showed that they were leaving when he shot them, so defence was not effective.
R v Hussain:Self-defence must be reasonable and proportionate, and it must occur at the time of the threat, not after it has passed.
Two brothers, Munir and Tokeer Hussain, returned home to find intruders who tied up and threatened their family. After the intruders fled, the brothers chased one of them down the street and attacked him with a cricket bat, causing serious injuries.The court ruled that while the initial threat justified self-defence, the force used was revenge rather than protection, as the intruder was fleeing and no longer a threat. Therefore, the defence was not available.
HOUSEHOLDER
Section 76 (5A) of CJIA 2008 states that, in a householder case, force which is grossly disproportionate will not be seen as reasonable. To be a householder case:
force must be used by D while in or partly in a building that is a dwelling
D must not be a trespasser
D must have believed V was a trespasser
In householder cases, and assuming that D genuinely believed that it was necessary to use force to defend themselves, tests to be considered are:
was the degree of force D used grossly disproportionate in the circumstances they believed them to be? if the answer is yes then they cannot use the defence of self-defence. if no, then
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 it was unreasonable, they do not
R v Ray: ‘disproportionate force’ in householder case, but not grossly disproportionate s76(5A) CJIA 2008:
D and V’s former partner were in a relationship and spending time in the former shared home. In the course of a fight, and fearing that V would use a knife against him, D fatally stabbed the victim. Defence failed, but CoA confirmed the interpretation of the defence in Collins.
Denby Collins case: a householder defending their home is allowed to use force that may be disproportionate but not “grossly disproportionate”
This confirms that in householder cases, the law is as followed:
whether the degree of force used is reasonable depends on the circumstances as D believed them to be (this is contained in the common law and s76 (3))
a householder is not regarded as having acted reasonably in the circumstances if the degree of force was used grossly disproportionate (s76 5A)
a degree of force that went completely over the top would be grossly disproportionate
however, a householder may or may not be regarded as having acted reasonably in the circumstances if the degree of force used was disproportionate, this will be a matter for the jury to decide
The jury might have to consider matter such as:
the shock of coming across an intruder in the house
the time of day
the presence and vulnerability of others in the house, especially any children
if any weapon or object was being used or picked up
the conduct (or previous conduct, if known) of the intruder
R v Williams: recovering stolen property, self defence is not a retaliation to crimes already committed
V stabbed D and took a necklace from him at the party. V ran away and was chased by a group from the party led by the D. They caught up with V some distance away and fatally stabbed him. Self-defence was not available here.
A03:
POINT
it’s an “all or nothing defence”
its a full defence and therefore full acquittal, even if you kill
works completely and D walks or it fails and D is guilty
EVIDENCE
this can be unfair
for murder cases- it either works or it doesn’t but there is no reduction from murder to m/s and maybe as a reform there should be- partial defence: R v Martin
ANALYTICAL COMMENTS
Law Commission 2004: report on partial defences to murder said that “all or nothing” can produce unsatisfactory results in murder cases
eventually led to the introduction of a new defence which replaced provocation: loss of control
REFORM
to be partial defence in case of murder e.g reduced to m/s so D takes killing seriously and fair to family. Equally good thing as D was preventing crime and shouldn’t be treated as criminal
POINT
issues of morality- can be very difficult to interpret
EVIDENCE
to what extent can a person use force to defend themselves and should they be able to?
at what point arguably does it become immoral to use force to defend yourself?
life sentence is not fair for those who have killed and have acted in self defence
ANALYTICAL COMMENTS
need to discourage vigilante justice
POINT
haphazard development of the law
EVIDENCE
lots of statutes govern the law e.g Crime and Courts Act 2013 (defence to householders where degree of force will not be regarded and “grossly disproportionate”)
common law
criminal justice and immigration act 2008 although the good thing here is that s.76 does clarify the law
ANALYTICAL COMMENTS
law is unclear to the ordinary citizen
link to rule of law
POINT
inconsistencies in outcomes of cases
EVIDENCE
tony martin could not use self-defence as a defence to a murder charge; Lee Clegg was acquitted on re-trial but Richard Osborn Brooks never actually charged with murder
munir hussain and his brother tokeer could not use self-defence but Vincent Cooke not even prosecuted
ANALYTICAL COMMENTS
the law needs to be framed very clearly
no one has a “licence to kill”
danger of a two-tier defence if citizens and those with public duty are treated differently
POINT
meaning of phrases such as “grossly disproportionate force”
EVIDENCE
denby collins case
ANALYTICAL COMMENTS
allowing householders to use “disproportionate force” was a dramatic shift in law
terms have not been defined in statute and so will require judicial interpretation when going to court- inconsistencies
POINT
defence still available even if D’s mistake was unreasonable- too generous?
what if D makes a mistake and pre empt force incorrectly and V was never going to attack?
EVIDENCE
r v beckford: a police officer (D) shot and killed a man, believing he was armed and dangerous — the belief turned out to be mistaken.
ANALYTICAL COMMENTS
if the defence is not allowed where D honestly believed (however unreasonably) they were about to be attacked, then D is at risk of being convicted when they weren’t at fault
against this, there is the need to protect an innocent V whom D had assaulted due to a mistaken belief
POINT
psychiatric conditions not taken into account, should be if D is not the reasonable person
EVIDENCE
tony martin, his condition allowed him to perceive much greater danger than the average person would
ANALYTICAL COMMMENTS
one of the reasons for this decision was that self-defence is usually raised in cases of minor assault and it would be ‘wholly disproportionate to encourage medical disputes in cases of that sort’
his condition also would have changed his view on what force was necessary and reasonable
however, if they act and use excessive amount of force, there is a V at the end of the day and law is about justice
POINT
drunken mistakes
EVIDENCE
if your belief that force was needed came from a drunken mistake, you cannot rely on self-defence
r v o’grady: d and a friend got drunk and fell asleep. d woke up, thought the friend was attacking him, and hit him — the friend later died. d not allowed to use defence. confirmed in r v hatton: d beat a man to death with a sledgehammer, mistakenly believing (due to drunkenness) he was under attack
ANALYTICAL COMMENTS
should this principle be abolished- the Law Commission 1989 said yes
acts as a deterrent for those who take drugs and drink and commit a crime
POINT
householder can use up to grossly proportionate force- what does this mean?
lead to inconsistency
very few people prosecuted- moral panic about burglars having more rights than householders- they don’t, this defence works well in practice and very few prosecutions of people who injure burglars
don’t have more rights as the householders can use up to grossly proportionate force
POINT
what is reasonable force
everyone finds themselves in unreasonable circumstances
POINT
what if D panics when they used self-defence but jury are trying to decide if it was reasonable and necessary
jury have to try put themselves in D’s position
No current reform proposals but maybe codify the law.