Self-Defence
- Gerrard: Gerrard had a fight with a DJ. Self-defence as he honestly believed that he was the subject of an imminent threat.
- Self-defence/property/another (private defence) are mainly under the common law. The Criminal Justice and Immigration Act 2008 codifies the common law.
- Prevention of a crime is 'public defence' (Criminal Law Act 1967 s.3)
- A person may use such force as is [objectively] reasonable in the circumstances as he [subjectively] believes them to be. (Gladstone Williams, Beckford)
- Whether the force used is reasonable is to be judged objectively (Owino).
- D can use force to ward off an anticipated attack, provided that it is anticipated as 'imminent'.
- AG's Ref (No 2) 1984: D owned a shop. There were riots. D drilled holes in his door to throw petrol bombs through just in case someone tried to break in. He was charged as he made and kept the bombs. He was acquitted on the basis of self-defence.
- Not required to remove yourself from the situation
- Bird 1985: Girl invited ex boyfriend to her party. Ex boyfriend brought his new girlfriend. They left the party then came back. Girl threw a drink at him. Ex boyfriend started slapping her as she was 'hysterical'. Girl was pressed against the wall. Girl smashed a glass towards him into his eye and was charged. Did she have to try to demonstrate that she wanted to remove herself from the situation? She did not.
- You can take it into consideration whether they left or tried to remove themselves from the situation but it is not necessary.
- Does D have to avoid an area where he/she knows he/she might be attacked?
- Field 1972: D knew someone was going to attack him. D went out anyway and ended up stabbing the V who was going to attack him.
- You shouldn't have to change your life just because they might be subject to a threat.
- O’Grady 1987: Where the jury are satisfied that D was mistaken in his belief that force was necessary to defend himself, and are satisfied that the mistake was caused by voluntarily induced intoxication, the defence must fail.
- Hatton 2006: A defendant's drunken mistake can not be relied on for the purposes of self-defence.
- If D is sober, he can use force reasonable in the circumstances that he honestly believes he must use.
- Jane goes for a run late one night and sees a man pacing up and down a street corner. She catches his eye and flings out an arm at him as she runs past. The man was actually just waiting for the bus. The jury would have to believe Jane honestly thought it was necessary to use force in those circumstances.
- If D is drunk, and makes a mistake about the need to use force to defend himself, and the mistake is due to his intoxication, he can't rely on self-defence.
- Was the force used reasonable in the circumstances as D honestly believed them to be?
- Hussein: "If persons were permitted to inflict their own punishments... the law on criminal justice would collapse."
- Palmer 1971: A person defending himself 'cannot weigh to a nicety the exact measure of his necessary defensive action.'
- When a jury is making a judgment, they're sitting in a safe court environment. When they're in an 'unexpected anguish' it may be different
- Owino 1996: Honest belief is subjective; reasonable use of force is objective
- Martin 2002: D lived in a farmhouse. He'd been subject to burglaries. He'd discovered that two burglars were driving onto his land, so laid in wait for them. His experience with the police wasn't positive - there was no point in calling them. He said, "The best thing to do is to shoot the bastards." He'd gone to the top of the stairs and fired off into the dark with his shotgun. The burglars tried to escape, but one was shot in the back and died. Tony Martin was charged. He sought to rely upon self-defence. He couldn't; the jury convicted him for murder. He appealed his conviction on the basis that he had suffered from a paranoid personality. That personality, in combination with the previous burglaries, meant that he was more likely than the reasonable person to overreact. Rejected, because you shouldn't USUALLY give the reasonable person the psychiatric characteristics of D: just the physical characteristics (e.g. small person up against a larger person attacking them; pregnancy etc.).
- Criminal Justice and Immigration Act 2008 s76(6): whether the force used is reasonable is to be decided on the circumstances as D believed them to exist.
- s76(7)(a): Disproportionate degree of force isn't to be regarded as reasonable but the jury has to take into account that: someone acting for a 'legitimate purpose' may not be able to 'weigh to a nicety the exact measure of any necessary action'
- s76(7)(b): That evidence of a person having only done what the person honestly and instinctively thought was necessary for a legitimate purpose constitutes strong evidence that only reasonable action was taken by that person for that purpose.
- Legal Aid, Sentencing and Punishment of Offenders Act 2012: inserted ss76(6) Criminal Justice and Immigration Act 2008: there is no duty to retreat but it can be a factor taken into account.
- When someone was correct in thinking they needed to use force, but using excessive force discounts self-defence
- It is not a partial defence
- The defence of self-defence is either used as an acquittal or is rejected
- AG for Northern Ireland's Reference 1977: "A soldier on patrol in Northern Ireland shot and killed an unarmed man, who ran away when challenged. The trial judge held that the prosecution had failed to prove that the soldier intended to kill or cause serious bodily harm, and that the homicide was justifiable under section 3 of the Criminal Law Act (Northern Ireland) 1967 (identical wording to the English section). The Lords decided that the Judge's ruling was purely one of fact, and therefore declined to answer the legal question of justification."
- Clegg 1995: "In the case of a soldier in Northern Ireland, in the circumstances in which Private Clegg found himself, there is no scope for graduated force. The only choice lay between firing a high-velocity rifle which, if aimed accurately, was almost certain to kill or injure, and doing nothing at all."
- The Criminal Law Revision Committee; Law Commission; and Select Committee on Murder and Life Imprisonment all said they should reduce the conviction of murder to manslaughter where D uses excessive force in self-defence
- Art 2 (Right to Life): Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: in defence of any person from unlawful violence; in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; in action lawfully taken for the purpose of quelling a riot or insurrection.
- The test: Reasonable force
- The law: Absolutely necessary
- The test: Honest belief
- The law: Honest belief for good reason
- Crime and Courts Bill
- It will offer a wider version of self-defence where they use it in their place of residence
- This will allow an amendment to the Criminal Justice and Immigration Act
- If you use self-defence in a place of residence, you could use anything up to grossly disproportionate force
- Grossly disproportionate force is difficult to define
- Why are we only looking at those in residences? Why are they more important?
- Reasonable force in public; anything up to grossly disproportionate force in private residences...
- Oscar Pistorius: you don't know what happened for sure!!
- It might result in people being more in danger than they are now: burglars might arm themselves knowing that residents may use large levels of force
- 'The criteria contained in the defences of duress and self-defence are said to be too strict, particularly in relation to those who kill and, if convicted, face the mandatory life sentence. However, the law must be strict to protect the sanctity of life; therefore, there should be no further reform in this area.' Critically discuss this statement.
- Introduction
- Explain what the law is
- Argue:
- Both are full defences
- This could raise issues in the context of defendants
- Criteria of duress:
- It isn't a defence to murder
- Murder is a 'special offence'
- The severity/consequences: don't want people to be readily excused from liability
- Not for you to judge that one person's life is more important than another's
- Law is too strict because you can't always be heroic; sometimes it's not selfish (e.g. saving child by killing another person)
- Self defence: Clegg 1955
- The use of force has to be reasonable
- You can be convicted of murder where you are allowed to use some force
- Conclusion (justified)
- Ali and Susie are walking through their local park. Charlie spots the pair of them and, mistaking Ali for his long-standing and violent enemy Thor, decides to hide behind a tree. As Ali and Susie approach, Charlie leaps out and hits Ali with a discarded beer bottle he found on the grass, cutting Ali's head. Discuss.
- He didn't have to wait
- He was able to hide
- It wasn't necessary to use force at all because his supposed enemy doesn't know he's there