Self-defence

Question 1

What type of defence is self-defence?

Answer 1

A complete defence

Leads to an acquittal if successfully pleaded

Question 2

What are the 2 separate parts of this defence?

Answer 2

1. Public defence/ prevention of crime (s3 CLA 1967)

2. Self-defence at Common Law

Question 3

What act clarifies the 2 types defences within self-defence?

Answer 3

s76 Criminal Justice and immigration Act 2008
Passed to clarify 2 defences following public concern after the Tony Martin case
Didn’t change the law in any way

Question 4

What does the s3 Criminal Law Act 1967 state about public defence?

Answer 4

Under s3 a person may use reasonable force to prevent crime or (help) arrest arrest (suspected) offenders or persons at large

Question 5

What case failed to use public defence?

Describe this case

Answer 5

R v Jones (2004)
D were protesting about war in Iraq
Caused damage to military bases
Argued they had a defence under s3 - they were trying to prevent an international crime of aggression against Iraq
HL rejected their appeal on grounds that ‘aggression’ is not a crime

Question 6

Who is a D allowed to defend in self-defence?

Answer 6

Themselves, others, even complete strangers

However = rules + limitation on the defence

Question 7

When a D pleads self-defence what 2 things must the prosecution prove?

Answer 7

1. Use of ANY for was unnecessary

OR if some force was justifiable

2. Actual degree of force used was unreasonable

Question 8

What are the 3 key issues the Cts look at within necessity of force in self-defence?

Answer 8

1. Possibility of retreat
2. Imminent threat
3. Whether D made a mistake which caused them to think their action was justified

Question 9

Name the case that clarified the law on the possibility of retreat within the defence?
What used to be thought about the possibility of retreat?

Answer 9

R v Bird (1985)

Used to be thought that D would have to demonstrate they were not wishing to fight + if there = chance to escape, this would deprive them of the defence

Question 10

Describe the case of R v Bird (1985)

Answer 10

D = celebrating 17th birthday
Ex-boyfriend turned up with his new girlfriend
Heated argument followed
Resulted in D gouging out his eye with glass
Trial judge told jury: D should’ve demonstrated she didn’t want to fight
CA quashed her conviction for wounding; not necessary for her to show reluctance to fight, self-defence = available

Question 11

What does the principle of ‘imminent threat’ mean?

Answer 11

D = only be justified in reacting to a threat which = imminent
MUST be some immediacy about the threat
BUT they don’t have to wait to be attacked
In limited circumstances law will allow a pre-emptive attack
As shown in R v Beckford (1988)
Strictly limited (Cousins 1982, Rashford 2005)

Question 12

Describe the case of R v Beckford (1988)

Answer 12

D = police officer who shot dead suspect
Told = armed + dangerous, D feared for his life
Prosecutions case: V was unarmed thus presented no threat to D
Lord Griffiths: ‘man who is about to be attacked doesn’t have to wait for his assailant to strike 1st blow/ fire 1st shot. Circumstances may justify pre-emptive strike’

Question 13

What did Lord Griffiths say in the case of R v Beckford (1988)?

Answer 13

‘A man who is about to be attacked doesn’t have to wait for his assailant to strike the 1st blow/ fire the 1st shot
Circumstances may justify a pre-emptive strike’

Question 14

Describe the case of Cousins (1982)?

Answer 14

D believed contract had been taken out on his life
Armed with shot gun, visited father of person he believed wanted him killed
Told father: would kill his son when he saw him
Charged with making threats, relied on s3 defence
Judge told jury: defence = not available; D’s life wasn’t in imminent danger
CA quashed the conviction + held = lawful excuse to threaten to kill IF threat = made in prevention of crime/ self-defence
Provided its = reasonable in circumstances to make such a threat

Question 15

Describe the case of R v Rashford (2005)

Answer 15

D stabbed V in chest following argument over trivial matter
D claimed it = an accident
D (+ 2 others) visited D to ‘teach him a lesson’
D’s conviction = upheld; not actually been placed in a position where = necessary to use force when he stabbed the V through the heart
CA ruled in principle = at least possible to plead self-defence to a charge of murder
Even though D admitted he had gone out looking for revenge

Question 16

Why is it important that the law be strictly limited when it comes to allowing a pre-emptive attack?

Answer 16

Because of the danger of vigilantes

Question 17

What does the law say about preparing for an attack?

Answer 17

If person thinks they = about to be attacked, in some circumstances they MAY have a defence
If they break the law preparing for an attack
D need not wait to be 1st
BUT MUST be an element of urgency + inevitability

Question 18

What 2 cases show the law on preparing for an attack in relation to the defence?

Answer 18

1. R v Malnik (1989) - car parts

2. Attorney-General’s Reference No 2 of 1983 (1984)

Question 19

Describe the case of Attorney-General’s Reference No 2 of 1983 (1984)

Answer 19

D’s shop had been attacked + damaged by rioters
Fearing further attacks, D made petrol bombs, stored them under the counter
CA: D’s acquittal for the offence of possessing an explosive substance = justified
Threat = sufficiently imminent for him to feel the need to defend himself

Question 20

Describe the case of R v Malnik (1989)

Answer 20

D went to flat of a man who he believed to have stolen some valuable cars from his associate
D: knew man = violent, took rice flail with him to protect himself
Convicted of possession of offensive weapon, conviction upheld
He wasn’t in imminent danger of attack; he himself was creating the dangerous situation by going to the man’s house

Question 21

What was the difference in decisions in AG’s Reference No.2 of 1983 (1984) and R v Malnik (1989)?

Answer 21

AG - allowed to use defence, threat = sufficiently imminent to him (shop = attacked, made petrol bombs)

R v M - D wasn’t allowed to use the defence, he created the dangerous situation (went to flat of ma he knew he was violent)

Question 22

What is subjective and objective about the principle ‘whether the D made a mistake which caused him to think their action was justified’?

Answer 22

If D makes a mistake which leads him to believe there = circumstances making defensive action necessary, Cts will assess the necessity of D’s conduct on the facts he believed them to be (subjective)
Even if mistake wasn’t a reasonable one to make (objective)

Question 23

Describe the case of R v Williams (Gladstone) (1987)

Answer 23

D was on a bus, saw man attacking a youth
In fact, man was trying to arrest the youth (just mugged old lady)
D jumped off the bus + asked the man what he was doing
Man said he = police officer (he wasn’t)
D asked to see ID, = struggle + man = injured
At trial, jury = directed that Williams had a defence only if he believed on reasonable grounds that the man = acting unlawful
CA quashed his conviction - mistake only had to be honest - not reasonable
s76(4) Criminal Justice and Immigration Act 2008 confirms this case

Question 24

What act confirms the ruling in the case of R v Williams (Gladstone) (1987)?

Answer 24

s76(4) criminal Justice and Immigration Act 2008

Question 25

What does the prosecution have to prove about the degree of force used?

Answer 25

That the force was un-necessary but also that if some force was justified, the degree of force was unreasonable

Question 26

Who decides if the degree of force in the circumstances was reasonable?

Answer 26

The jury

Question 27

What happens when the D uses excessive force? | Name and describe the case that illustrates this point

Answer 27

Defence won't be available to the D Illustrated in R v Clegg (1995) Soldier on check-point duty in Belfast fired 4 bullets at car driven by joyriders when it failed to stop as ordered Scientific evidence showed the 4th bullet = fired when car had passed 50 feet along the road V who sat in back = killed by final shot D = convicted of murder Upheld the HL (rejected his pleas of self-defence) HL: whilst 1st 3 shots were evidence of self-defence, last shot = excessive

Question 28

Describe the controversial case of R v Martin (2001)

Answer 28

D shot 2 burglars as they ran away from his farmhouse The one that was shot in the back died CA rejected his plea - excessive/ disproportionate force had been used Subsequently on appeal they substituted a MS verdict on grounds of diminished responsibility D claimed to have personality disorder, meant he may have thought he = in a dangerous situation

Question 29

Why might this defence be in conflict with the HRA 1998?

Answer 29

Article 2 - everyone's rights shall be protected by law BUT deprivation of life doesn't contravene (violate) that article IF it results from force which = no more than absolutely necessary, in defence of any person from unlawful violence Art 2 only applies when aggressor dies, doesn't cover threats of violence/ attacks on property BUT English law does allow reasonable force to be used against burglars

Question 30

Why is the defence necessary?

Answer 30

Goes against normal rule that we owe a duty not to kill/ injure others BUT that obligation only applies when state cannot protect a citizen When it can't, citizen can use self-help/ + defence themselves or others Can be necessary; it would be unrealistic to expect help to arrive in time

Question 31

What is a disadvantage of the defences subjective/ objective guidelines?

Answer 31

Can be argued that law has gone too far in protecting the D Subjective element - D's belief may not be reasonable (R v Martin (2001))

Question 32

What is a major disadvantage in the way the defence has been developed?

Answer 32

Developed in context of inter-male violence - ignores domestic violence = argument that where a woman has been a V of domestic abuse, should be allowed to use self-defence Even they have used a weapon or if partner = asleep Been allowed in USA + Canada Case of Diaz - woman succeeded in self defence after she shot her sleeping husband

Question 33

What is an issue with the defence in terms of protecting property?

Answer 33

What is reasonable force in this context? Should propel be allowed to use force to protect things as well as people, or should it be restricted? Does the law give adequate protection here?

Question 34

What is the problem with the principles based on excessive force?

Answer 34

Defence fails completely If D causes non-fatal offence, judge can take self defence into consideration when sentencing D may have gone too far but some degree fo force might've been acceptable in circumstances, in light of what D believed (clarified by Criminal Justice + Immigration Act 2008) However if murder charge, judge has no discretion

Question 35

Should there be any relevance in the D's characteristics in relation to the defence? What case was this decided in?

Answer 35

Could be argued that if D had psychiatric condition then the Ct should take that into account when considering if the force used = reasonable BUT R v Martin (2001) - Ct ruled this shouldn't be taken into consideration

Question 36

What reform has been made to the defence in relation to it being a full defence?

Answer 36

Has been argued that it could be a partial defence (where D used too much force) Coroners + Justice Act 2009: = partial defence to murder where D killed in response to serious violence against themselves/ other ID person As long as a person of D's sex + age with 'normal degree of tolerance + self-restraint' + in circumstances of the D, MIGHT have reacted in a SIMILAR way

Question 37

When is the defence unavailable to the D, even if they made a genuine mistake?

Answer 37

If reason of the mistake = result of voluntary intoxication Lord Lane in the case of O'Grady (1987) felt because defence = full defence, if D was allowed a drunken mistake as an excuse, dangerous criminals would go unpunished + families of V wouldn't feel like justice had been served Criminal Justice + Immigration Act 2008 confirms this

Question 38

Describe the case of O'Grady (1987)

Answer 38

D + his friend had been drinking heavily, fell asleep D said he awoke to find his friend hitting him In self-defence D hit him with an ashtray Next morning discovered his friend = dead D convicted of MS - upheld by CA Ruled: where D = mistaken in thinking either any force = necessary OR the force used was reasonable and the mistake was caused by intoxication, defence would fail Followed in R v Hatton (2005)

Question 39

What case followed the ruling set O'Grady (1987)? | Describe this case

Answer 39

R v Hatton (2005) D met V at a club, both returned to D's flat D battered V to death with sledgehammer Said he couldn't remember what had happened - been very drunk But had vague memory of an argument Stick in shape of samurai sword = found under D's body - might indicate that the D was acting in self-defence Judge ruled that drunken mistake wasn't a defence, even to murder CA upheld the conviction

Question 40

What act confirms the ruling in O'Grady (1987)?

Answer 40

Criminal Justice + immigrations Act 2008

Question 41

What did Lord Lane say in the case of O'Grady (1987)

Answer 41

Because defence = full defence, if D was allowed a drunken mistake as an excuse, then dangerous criminals would go unpunished + the families of the Vs wouldn't feel like justice had been served