self defence (objective element of reasonable force (Whilst the question…
of reasonable force
Whilst the question of reasonable force is decided by reference to the circumstances the defendant believed them to be the level of force is decided objectively.
= Initially a subjective test was applied for self-defence and prevention of crime
= However, this position was considered unsatisfactory and was changed to an objective test
This was affirmed in
R v Martin
where the court rejected the question of taking into account the characteristics of the defendant in assessing whether the level of force was reasonable in the circumstances for the purposes of self-defence:
= There is no longer any duty to retreat in order to rely on self-defence
r v Keane
= Where the defendant is the aggressor or deliberately provokes the victim into punching him, self-defence will only be allowed where the violence offered by the victim was so out of proportion to that offered by the defendant, that in effect the roles were reversed
AG ref. no. 2 1983
= The defences of self-defence and prevention of crime can be used to cover preparing for attack
There have been some calls for a change where self-defence fails in relation to a murder charge due to excessive force. The argument is that in such cases the jury should have the option of returning a verdict of manslaughter rather than having the all or nothing approach of murder or no criminal liability at all. The cases of (
) and (
) have fuelled such debate.
Such an approach was adopted in Australia in the case of The
Queen v. Howe 100 C.L.R. 448
but was subsequently abandoned. Such an approach was rejected by the Privy Council in
R v Palmer
of reasonable force
S.76(3) Criminal Justice and Immigration Act 2008
provides that 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 D believed them to be. This is thus decided subjectively.
a.) the reasonableness or otherwise of that belief is relevant to the question whether D genuinely held i
this affirms the law in (
Gladstone Williams; Beckford
if it is determined that D did genuinely hold it, D is entitled to rely on it for the purposes of subsection (3), whether or not...
(i) it was mistaken, or
(ii) (if it was mistaken) the mistake was a reasonable one to have made.
S.76(5) upholds the rule in
that where the mistaken belief that they were acting in self-defence is attributable to voluntary intoxication, the defendant is unable to rely on the mistaken belief.
=Where the person is actually under attack there should be no direction to the jury based on intoxicated mistake