EVALUATION: SELF DEFENCE

INTRO- define self defence

P1- Statutory confusion

  • Criminal Law Act 1967 (s3)

  • reasonable force may be used to:

  • prevent a crime

  • assist in the unlawful arrest of offenders/those unlawfully at large

s76 Criminal Justice and Immigration act clarifies the common law on what is ‘reasonable force’ in self-defence.

The Crime and Courts Act 2013- introduced householder self-defence.

So what?

  • creates confusion and uncertainty, needlessly complex and could be made more efficient acceptable leading to more clarity on the exact status and elements of the self defence law

Reform Ideas

  • consolidate act, bringing self defence law all into one place

  • judges to use everyday language specially concerning the degree of force and reasonableness

P2- Necessary and important defence which has stood the test of time

  • in 1971 the common law principle of self defence which clarified in PALMER 1971- Lord Morris “it is both good law and good sense that a man who is attacked may defend himself. It is good law and good sense the team may do, but only do, what reasonably necessary’

  • liberal value accepted in most western liberal democracies- constitutional significance/ Magna Carta- respect for property.

  • currently (as has always been the case- contrary to media headlines) the law has always favoured the D. The law has survived and had no calls for its abolition or limitations.

  • There is no expectation on D to measure the amount of force used (PALMER) it recognises the ‘heat of the moment’

  • Lethal force can be used- providing it is reasonable according to the threat perceived (R v Beckford- 1988 Jamaica- D was a police officer who shot and killed a person in house reported to have a gun, no gun found- D’s conviction quashed.)

  • no duty for D to retreat and D can prepare for an attack.

These all favour the D. The law therefore adequately protects citizens when they must defend themselves.

Cases- R v BECKFORD, R V BIRD, AG REF 6

P3- householder cases

  • despite amendment and new legislation on householders, there are some remaining issues about the amount of force allowed

  • is a householder morally justified in using any amounts of force?

  • are they acting wrongfully in defending in defending themselves up all their property whatever force is used?

  • only ‘grossly disproportionate’ would void the defence of self defence being used by householders

  • neither ‘reasonable’, ‘disproportionate’, nor ‘grossly disproportionate’ have been defined by statute law.

  • does a householder who murders a burglar (like R v Martin) deserve a mandatory life sentence in the same way a burglar would if he murdered the householder?

  • would a householder be any more fearful than a person in a shop or bank being robbed? is the law consistent on this, giving too much leniency to the fact that person lives in a. property. Encourages excessive force or revenge?

  • Cases- R v MARTIN, R V BIRD

P4- Law commission recommendations for reform

  • the law commission 2004: report on partial defences to murder said that ‘all or nothing’ can produce unsatisfactory results in murder cases

  • evidence- if the force is deemed excessive, the defence fails entirely, leading to a conviction- potentially for murder, which carries a mandatory life sentence. If excessive force is used, the defendant cannot have their conviction reduced to manslaughter. Instead, they are convicted of murder, even if they were acting out of genuine fear for their life

  • analysis- they proposed introducing a partial defence for excessive force in self-defence, would could reduce murder to manslaughter, avoiding the harsh ‘all or nothing’ outcome.