Self-Defence/Defence of Another/Prevention of Crime
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- Created by: Ben Stephens
- Created on: 01-02-16 11:45
Introduction
- Self-defence comes from common law
- General defence - if successful -> complete acquittal
- This defence allows a person to use reasonable force to
- Defend himself from attack
- Defend another from attack
- E.g. R v Rose (1884) D shot father, who was attacking D's mother. D was acquitted on grounds of self-defence
- Defend his property
- There is also Prevention of Crime - s3(1) Criminal Law Act 1967 - 'a person may use such force as is reasonable in the circumstances in the prevention of crime, or in ... assisting in the lawful arrest of offenders or suspected offenders ...'
- Parlieament has partially consolidated self-defence + prevention of crime into s76 Criminal Justice and Immigration Act 2008
- states: 'a person may use such force as is reasonable in the circumstances'
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Burden of Proof
- Burden of proof on P to disprove D used self-defence
- P must prove:
- Use of any force = unnecessary, or if it was, then
- The actual degree of force used was unreasonable
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The Necessity of Force
- Was the force D used necessary? - for jury to decide
- Crim Just Imm Act - a person is not under any obligation to retreat
- But D not taking opportunity to retreat might be relevant in deciding if force = necessary
R v Bird (1985)
- D was hit by a man and D hit back in self-defence
- Trial judge: self-defence only available if D had shown unwillingness to fight
- Conviction quashed: an unwillingness to fight not necessary.
- there are situations where D might reasonably react immediately w/out first retreating
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Pre-emptive Strike
- D can use force to prevent an attack
- D doesn't need to wait until he is being hit
Beckford v R (1988)
- Lord Griffith: 'a man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike'
A-G Ref (no2 1983/84)
- D made petrol bombs during riots to protect his shop
- Anticipated attack never happened + D did not use petrol bombs
- Charged under Explosive Substances Act 1883
- D successfully pleaded self-defence
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Attacker Retreats
- If attacker = running away, highly unlikely that any force will be seen as necessary
Hussain and Another (2010)
- D was burgled
- Burglars ran off but D and another fam member chased them
- Caught one burglar + beat him up
- Held: self-defence not available as danger from original attack had passed
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Mistaken Use of Force
- Where D makes genuine mistake, jury will decide whether the force was necessary in the circumstances as D believed existed - Williams
Williams (1987)
- D saw what looked like man assaulting youth
- D asked man what he was doing + man said that he was PC arresting youth for assaulting old lady. D asked man to show police ID but man failed to do so
- Struggle broke out between D and man
- Trial judge: mistake would only be a defence if it was both honest and reasonable (objective)
- CA: Conviction quashed: jury should have been directed to whether D's misktaken belief was genuine regardless of whether it was reasonable or not (subjective)
Crim Just + Imm Act 2008 s75(3)+(4)
- 'The question of whether the degree of force used by D was reasonable in the circumstances is to be decided by reference to the circumstances as D believed them to be ... whether or not it was a mistaken belief ... or ... whether or not it was reasonable'
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Intoxicated Mistake (Voluntary intoxication)
A drunken mistake concerning the necessity for, or the amount of force required in self-defence is no defence - O'Grady, Hatton
O'Grady (1987)
- D killed V while drunk
- D charged w/manslaughter
- Self-Defence failed
- Since put into Statute - Crim Just + Imm Act 2008 - D cannot rely on a mistaken belief in relation to the necessity for, or amount of force used, if that mistake is due to D's involuntary intoxication
Hatton (2005)
- D killed V w/sledgehammer while drunk
- D charged w/murder
- Ruled that decision in O'Grady not limited to basic intent offences - drunken mistake regarding amount of force needed in self-defence -> not a defence
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Degree of Force
- law allows reasonable force to be used in the circumstances
- If the force used was disproportionate in the circumstances as D believed them to be, this is not reasonable
- To decide whether force was reasonable the following will be taken into account
- s76(7)(a) - ... a person ... may not be able to weight to a nicety the exact measure of any necessary action; and
- s76(7)(b) - ... evidence of a person's having only done what they honestly and instinctively thought was necessary ... constitutes strong evidence that only reasonable action was taken ...'
- summary: someone facing attack is likely to be under stress -> cannot be expected to weigh up accurately how much force to use in the situation. If he honestly and instinctively thought that the level of force used was necesary -> strong evidence that degree of force = reasonable in the circumstances
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Householder Cases
- Crime and Courts Act 2013 ammended s76 Crim Just Imm Act 2008 to give wider defence to people when in their homes
- Normally, degree of force not reasonable if force = disproportionate (in circumstances as D believed them to be)
- w/householder cases, degree of force not reasonable if force = grossly disproportionate
To be a householder case
- the force concerned is force used by D while in/partly in a building that is a dwelling
- D cannot be a trespasser
- D must have believed V to be a trespasser
Note: also applies to residences that are also places of work (e.g. if D is a shopkeeper)
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If D has a Psychiatric Condition
- If D's psychiatric condition makes him genuinely believe that force is necessary + courts accept this -> D should be able to use self-defence
- But this is doubtful - Act did not make it clear whether a psychiatric condition would be taken into account or not
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